Thursday, March 5, 2015
Claims about social and economic rights (as a kind of human right) are often criticized because they fail to specify who are the bearers of the corresponding duties. We usually say that states are the duty-bearers, but it may not be possible for a poor state to bear the burden of these rights. And anyway it may be a mistake to focus exclusively on states in an age of globalization. This paper uses some analytic ideas from the 1970s and 1980s to address this problem. Drawing on the work of Neil MacCormick and Joseph Raz, it argues that it is possible to specify a right without specifying duty-bearers; that a right is a reason to look for duty-bearers in regard to a particular interest; that there may be many duty-bearers in regard to a given right; and that who bears the duty corresponding to a given right may vary by time and circumstance.
Monday, March 2, 2015
In 2013 the Supreme Court in Shelby County v. Holder vitiated the preclearance provision of the 1965 Voting Rights Act, Section 5, by declaring unconstitutional the coverage provision of Section 4. What garnered virtually no attention in the decision or subsequent proposals to amend the preclearance provision was the requirement in Section 5 that applications for judicial preclearance must be filed before a three-judge district court in the District of Columbia. This essay argues that this exclusive venue in DC be revisited in the statutory efforts to revive preclearance. Venue of such actions in DC was a controversial issue when preclearance was first passed, and its initial reauthorizations, but the controversy eventually faded. This essay argues that the debate should be revived. The original reasons for exclusive venue are no longer sound or necessary today. There is no present need for reasons of uniformity or expertise to vest exclusive venue of preclearance actions in DC, and should Section 5 be statutorily revised, the jurisprudence under that provision could benefit from the application of normal venue rules, which would permit percolation of issues in federal courts throughout the country. It might also make the revival of some sort of preclearance more politically palatable. Preclearance enforcement actions were already litigated outside of DC, and there are good reasons to extend all future preclearance litigation in the same way.
Friday, February 20, 2015
This paper examines the National Security Agency, its compliance with legal constraints and its respect for civil liberties. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. Yet as will become evident, the offices that make up the NSA’s compliance system are nearly entirely compliance offices, not policy offices; they work to improve compliance with existing rules, but not to consider the pros and cons of more individually-protective rules and try to increase privacy or civil liberties where the cost of doing so is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers. Intelligence legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the late 1970s. But I argue that it gives systematically insufficient weight to individual liberty, and that its relentless focus on rights, and compliance, and law has obscured the absence of what should be an additional focus on interests, or balancing, or policy. More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.
Part I first traces the roots of intelligence legalism to the last generation of intelligence disclosures and resulting reform, in the late 1970s. Part I then goes on to detail the ways in which intelligence legalism is embedded in both the Foreign Intelligence Surveillance Act of 1978 (FISA) and Executive Order 12,333, which governs American intelligence practices, and why the result is a civil liberties gap. Part II discusses the ways in which NSA’s compliance and oversight institutions likewise embody intelligence legalism. I then move in Part III to some shortcomings of this system, and in particular the ways in which the law and NSA’s compliance regulations and infrastructure fall short of full civil liberties policy evaluation. In Part IV, I examine some of the many reforms that have recently been proposed, analyzing in particular those that might fill that gap. In light of the existing institutional arrangements, I sketch some thoughts on how they could do so most effectively.
Thursday, February 19, 2015
How about $25 million? Well that's precisely what a Brooklyn man claims he's due for the 25 years he spent locked up for a murder he didn't commit. The NYPost reports:
A Brooklyn man who spent 25 years behind bars for a 1989 murder he didn’t commit is suing the city and a slew of cops for egregious civil rights violations, according to a federal lawsuit.
Derrick Deacon, 58, has already filed a $25 million lawsuit against the state in a pending case.
There was no dollar amount in the new suit against the city.
Deacon was convicted of killing 16-year-old Anthony Wynn in a Prospect Lefferts Garden building and sentenced to 25 years to life in prison before he was acquitted at a 2013 retrial.
Deacon had been granted a new trial in June 2012 after a Jamaican gang member told authorities that another man had actually committed the slaying.
In addition, another key witness who had originally placed him at the murder scene recanted her testimony at his retrial and testified that conviction-hungry cops and district attorney investigators coerced her bogus tale.