Filtered Dragnets and the Anti-Authoritarian Fourth Amendment

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities. However, filtered dragnets imperil society precisely because they detect crime too well. Sudden increases in the detection of criminal conduct will intensify the pathologies of American criminal justice: namely, that too many marginally harmful acts are criminalized, crimes are punished too harshly, and police and prosecutors have too much discretion. If nearly everybody commits some technical violation of criminal law that can be easily detected and harshly punished, all Americans will be at the mercy of the constable’s pity. These threats are not well-constrained by current Fourth Amendment jurisprudence, based on privacy rights, because filtered dragnets detect crime without revealing irrelevant details. Thus, Fourth Amendment theory and doctrine must strengthen the anti-authoritarian objectives endowed in its roots. A search conducted with a filtered dragnet should be considered reasonable only if it is administered in an evenhanded manner, and a subsequent seizure of a person is reasonable only when the misconduct is abhorrent enough to justify arrest and imprisonment

Snake Oil Speech

Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but has given wide latitude to state actors to regulate all but the most accepted and well supported claims in advertising. This Article shows that the interests in speech and safety alike would be better served by switching from the truth-oriented set of rules that apply today to a risk orientation. While risk and falsity are obviously related, they are not substitutes. The transition to a risk analysis would better match longstanding First Amendment traditions that permit state interests in avoiding harm to outweigh speech interests while maintaining epistemic modesty. The practical effect of this shift would be to permit more regulation in public discourse and less in commercial speech

Liking the Intrusion Analysis in \u3ci\u3eIn Re Facebook\u3c/i\u3e

In re Facebook preserved a class action brought against Facebook based on its mass collection of web browsing data. Although the plaintiffs brought several common law and statutory causes of action, I will focus on the court’s analysis of intrusion upon seclusion. This is where the case makes its greatest contribution to 21st century jurisprudence. It clears up several puzzles that had troubled the tort (and indeed my own thinking) to the great benefit of tort theory and the progress of privacy la

The Quiet Resignation: Why Do So Many Female Lawyers Abandon Their Careers?

Thirty percent of female lawyers leave their careers. The same is true for female doctors. Over time, an increasing number of married professionals have recreated traditional gender roles, and society has lost a tremendous amount of training and well-honed talent as a result. Neither workplace discrimination nor family obligations can fully and satisfactorily explain the trend. Both of those theories assume that women take a more dependent and vulnerable position in the household because of constraints, but in one important respect, men are more constrained than women, and they are better off for it: to maintain social status, men have to work. Women do not. This Article advances a theory and corroborating evidence that the cultural acceptance of female underemployment is a privilege in the abstract, but a curse in practice. Even under the best conditions, the early stages of professional careers involve mistakes, mismatches, and disappointments. An opportunity to escape the stress of the public sphere by focusing on the family may have great appeal in the short run even though the long-run consequences are severe. Asymmetric cultural acceptance creates an easy off-ramp for females, to nearly everybody’s detriment

Tort Liability for Physical Harm to Police Arising From Protest: Common-Law Principles for a Politicized World

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters.In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues

Platforms: The First Amendment Misfits

This Essay explains why previous First Amendment precedents that allowed government to require a private entity to host the speech of others have limited applicability to online platforms like Twitter and Facebook. Moreover, the backdrop of an open internet makes platforms sufficiently vulnerable to competition and responsive to “listener” preferences that the dominance of some firms like Facebook and Google is not really a chokepoint: aggressive changes to content curation will lead to user dissatisfaction and defection, whether those changes are made by the government or the companies themselves. As a result, there are no close analogies in First Amendment precedent for internet platforms. We identify the similarities between social media platforms and more traditional venues for speech (like mail, malls, and television) but ultimately conclude there are critical differences that break the analogies. We then compare the role of social media platforms to basic internet service providers to better understand how the line between speech participants and mere conduits should be drawn in an online context. We find that First Amendment caselaw and the reasoning that flows through it would categorize platforms like Twitter and Facebook as speech participants. Next, we consider whether public perception of platforms standing in the role of a “public square” should significantly alter the First Amendment protections afforded to platforms, arguing that it should not. Finally, we argue that online platforms are their own free speech creature that deserve strong protection from government intervention in hosting and curation choices. However, they may be good targets for transparency requirements

Further development of a liquid chromatography-high-resolution mass spectrometry/mass spectrometry-based strategy for analyzing eight biomarkers in human urine indicating toxic mushroom or Ricinus communis ingestions

Recently, we presented a strategy for analysis of eight biomarkers in human urine to verify toxic mushroom or Ricinus communis ingestions. However, screening for the full panel is not always necessary. Thus, we aimed to develop a strategy to reduce analysis time and by focusing on two sets of analytes. One set (A) for biomarkers of late-onset syndromes, such as phalloides syndrome or the syndrome after castor bean intake. Another set (B) for biomarkers of early-onset syndromes, such as pantherine–muscaria syndrome and muscarine syndrome. Both analyses should be based on hydrophilic-interaction liquid chromatography coupled with high-resolution mass spectrometry (MS)/MS (HILIC-HRMS/MS). For A, urine samples were prepared by liquid–liquid extraction using dichloromethane and subsequent solid-phase extraction of the aqueous supernatant. For B urine was precipitated using acetonitrile. Method A was validated for ricinine and α- and β-amanitin and method B for muscarine, muscimol, and ibotenic acid according to the specifications for qualitative analytical methods. In addition, robustness of recovery and normalized matrix factors to matrix variability measured by urinary creatinine was tested. Moreover, applicability was tested using 10 urine samples from patients after suspected mushroom intoxication. The analytes α- and β-amanitin, muscarine, muscimol, and ibotenic acid could be successfully identified. Finally, psilocin-O-glucuronide could be identified in two samples and unambiguously distinguished from bufotenine-O-glucuronide via their MS2 patterns. In summary, the current workflow offers several advantages towards the previous method, particularly being more labor-, time-, and cost-efficient, more robust, and more sensitive