Implementing Routine HIV Testing: The Role of State Law

In September 2006, the Centers for Disease Control and Prevention (CDC) recommended routine HIV testing for all Americans aged 13–64, which would eliminate requirements for written consent and pretest counseling as previously required. However, this approach may conflict with state requirements concerning pretest counseling and informed consent for HIV testing. Our survey of state HIV testing laws demonstrates that the majority of states have HIV testing requirements that are inconsistent with the CDC's recommendations. Moreover, states that have recently amended their laws have not eased the requirements for pretest counseling and informed consent. The reasons for the persistence of these legal requirements must be understood to effect policy changes to increase HIV testing

Parents, Privacy, and Facebook: Legal and Social Responses to the Problem of Over-Sharing

This paper examines whether American parents legally violate their children’s privacy rights when they share embarrassing images of their children on social media without their children’s consent. My inquiry is motivated by recent reports that French authorities have warned French parents that they could face fines and imprisonment for such conduct, if their children sue them once their children turn 18. Where French privacy law is grounded in respect for dignity, thereby explaining the French concerns for parental “over-sharing,” I show that there are three major legal roadblocks for such a case to succeed in US law. First, US privacy tort law largely only protects a person’s image where the person has a commercial interest in his or her image. Secondly, privacy tort laws are subject to constitutional constraints respecting the freedom of speech and press. Third, American courts are reluctant to erode parental authority, except in cases where extraordinary threats to children’s welfare exist. I argue that while existing privacy law in the US is inadequate to offer children legal remedy if their parents share their embarrassing images of them without their consent, the dignity-based concerns of the French should not be neglected. I consider a recent proposal to protect children’s privacy by extending to them the “right to be forgotten” online, but I identify problems in this proposal, and argue it is not a panacea to the over-sharing problem. I conclude by emphasizing our shared social responsibilities to protect children by teaching them about the importance of respecting one another’s privacy and dignity in the online context, and by setting examples as responsible users of internet technologies

Realism and analysis within public law

Allan, Loughlin and Walker represent leading theorists within the realm of public law analysis. Accordingly, when such theorists write on a similar topic, such as that of the theory of constitutionalism, it can be assumed that their analysis and evaluation of the theory represents a ‘realistic’ account. However, close examination of their writings does not reveal similarity but instead much divergence, even incompatibility. This then raises the question, how can such diversity represent reality? If all three theorists are examining the same phenomenon then surely there must be some similarity between their accounts for there to be reality? Alternatively, if all the perceptions of the theorists are indeed real, then perhaps it is the way that public lawyers represent reality that needs to be examined