Limited Powers in the Looking-Glass: Otiose Textualism, and an Empirical Analysis of Other Approaches, When Activists in Private Shopping Centers Claim State Constitutional Liberties

This Article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those cases that were decided after the federal question became clear. The Article first inquires into the role of textualism in these cases. The Article then examines other interpretivist modes besides textualism, namely originalism, structuralism, and precedentialism, as well non-interpretivist public policy arguments. The purpose of this inquiry is to clarify the role of interpretivism in state courts\u27 decisions on whether to expand the scope of their state constitutional protections for individual rights

On a Wagon Train to Afghanistan: Limitations on Star Trek\u27s Prime Directive

Part II of this article acquaints the reader with the Star Trek universe, both as a mirror of Western cultural development for the last three and a half decades, and conversely as a force that has had a remarkable impact on contemporary Western culture. This acquaintance provides a foundation to understand how and to what extent the Prime Directive, a product of science fiction, can be useful in understanding future intercultural contacts right here on Earth. Part III of this article reviews specifically the appearance of the Prime Directive in Star Trek lore, for the most part with reference to Star Trek\u27s captains Kirk and Picard. This review analyzes the fictional evolution of the Prime Directive from its straightforward origin as political commandment to its fuzzy, modern complexity as an aspirational principle. Part IV.A transports the reader back to the real world to show how the Prime Directive has operated both before and since the advent of Star Trek, chiefly in international relations, but also in areas ranging from the hard science of space exploration to the thoughtful business of eco-tourism. Synthesizing the lessons learned from fictional starship captains with the practical and real world applications of the Prime Directive, Part IV.B recognizes three important and related principles in understanding and employing the Prime Directive: (1) it is not inviolable, rather its violation is inherent in its nature; (2) it is not a rule of law, rather an aspiration; and (3) it is a product of a Utopian fiction, and as such can never be fully realized on the Earth as we know it. Finally, Part IV.C applies the Prime Directive, understanding these limiting principles, in the context of the present conflict between the West and the Islamic world, concluding that the modern Prime Directive should not and cannot flatly prohibit Western involvement there. Part V concludes that the proper and modern understanding of the Prime Directive dictates that the value of cultural autonomy must be balanced with the inevitability of cultural interference and transformation. Ultimately all that the Prime Directive can teach is that when two worlds collide, people must work together to preserve the best of both

Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government in Second U.S. Supreme Court Privacy Case with International Implications

Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises under the SCA, involves criminal investigation and new technology, and implicates collision between the third-party doctrine and European privacy law. In United States v. Microsoft, however, the implications for international law loom larger

On the Wagon Train to Afghanistan: Limitations on Star Trek\u27s Prime Directive

Part II of this article acquaints the reader with the Star Trek universe, both as a mirror of Western cultural development for the last three and a half decades, and conversely as a force that has had a remarkable impact on contemporary Western culture. This acquaintance provides a foundation to understand how and to what extent the Prime Directive, a product of science fiction, can be useful in understanding future intercultural contacts right here on Earth. Part III of this article reviews specifically the appearance of the Prime Directive in Star Trek lore, for the most part with reference to Star Trek\u27s captains Kirk and Picard. This review analyzes the fictional evolution of the Prime Directive from its straightforward origin as political commandment to its fuzzy, modern complexity as an aspirational principle. Part IV.A transports the reader back to the real world to show how the Prime Directive has operated both before and since the advent of Star Trek, chiefly in international relations, but also in areas ranging from the hard science of space exploration to the thoughtful business of eco-tourism. Synthesizing the lessons learned from fictional starship captains with the practical and real world applications of the Prime Directive, Part IV.B recognizes three important and related principles in understanding and employing the Prime Directive: (1) it is not inviolable, rather its violation is inherent in its nature; (2) it is not a rule of law, rather an aspiration; and (3) it is a product of a Utopian fiction, and as such can never be fully realized on the Earth as we know it. Finally, Part IV.C applies the Prime Directive, understanding these limiting principles, in the context of the present conflict between the West and the Islamic world, concluding that the modern Prime Directive should not and cannot flatly prohibit Western involvement there. Part V concludes that the proper and modern understanding of the Prime Directive dictates that the value of cultural autonomy must be balanced with the inevitability of cultural interference and transformation. Ultimately all that the Prime Directive can teach is that when two worlds collide, people must work together to preserve the best of both

Media Law & Ethics Enter the 21st century, Introduction to Symposium

We stand now on the verge of the twenty-first century: an artificial construct yes, but a culturally significant time nonetheless. We are the world the Hutchins Commission foresaw: the world of nations seeking understanding, seeking destiny. We will not predict the future with perfect accuracy, though we will try, because that is out nature. In our effort, we must be mindful that the questions we are asking are not new; they have been asked before and will be asked again. But let us see what we have to say about them today