Copyright (c) 2010 Rutgers Law School (Newark) All rights reserved. http://law.bepress.com/rutgersnewarklwps Recent documents in Rutgers University (Newark) Legal Working Paper Series en-us Fri, 04 Jun 2010 01:30:14 PDT 3600 http://law.bepress.com/rutgersnewarklwps/fp/art48 http://law.bepress.com/rutgersnewarklwps/fp/art48 Wed, 02 Jun 2010 20:55:34 PDT During the first half of the 20th Century, the period when all of the United States’ major workers’ rights statutes were enacted, the American labor movement claimed the rights to organize and strike under the Thirteenth Amendment to the U.S Constitution. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an “imperative duty” to “refuse obedience and to take whatever consequences may ensue.” At a time when union institutions were as weak as they are today, every attack on workers’ rights was met with an impassioned defense of the constitutional rights to organize and strike. At the same time, the movement took a long-term approach to legislative reform, demanding the full freedom to associate in organizing unions and staging strikes. In recent decades, by contrast, the movement has often shied away from defending the right to strike at moments of conflict (the 2005 New York subway strike being a prominent example), and has shaped its legislative proposals to fit what it sees as the short-run possibilities (for example, the Employee Free Choice Act, which makes no attempt to protect the right to strike). This article suggests that elements of the old labor movement’s constitutional strategy might be useful in the struggle for workers’ rights today. James G. Pope Labor Law http://law.bepress.com/rutgersnewarklwps/fp/art47 http://law.bepress.com/rutgersnewarklwps/fp/art47 Wed, 24 Sep 2008 08:50:34 PDT In this article, I confront Garvey¡¯s argument that a weak-willed individual deserves partial excuse for trying to resist a strong desire that pushes him toward commission of a criminal act even though in the end he unreasonably abandons his resistance and commits the crime. I attempt to refute Garvey¡¯s argument on two counts: one, I question whether the law should indeed provide mitigation to such an offender; and two, I argue that, even if it should, this mitigation may not come in the form of a partial defense. Defenses, even partial, are desert based, and there is nothing in Garvey¡¯s offender¡¯s circumstances that makes him less blameworthy for the crime he committed. A court may choose to treat such an offender more leniently but it should not be mandated to do so. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art46 http://law.bepress.com/rutgersnewarklwps/fp/art46 Fri, 18 Jul 2008 08:38:15 PDT This article continues conversation about consent to physical harm started in Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165 (2007).Intentionally injuring or killing another person is presumptively wrong. To overcome this presumption, the perpetrator must establish a defense of justification. Consent of the victim may serve as one of the grounds for such a defense. This article puts forward criteria for the defense of consent.One element of the proposed defense is essential to both its complete and partial forms ¨C that consent of the victim be rational and voluntary. In addition, for complete justification, the perpetrator¡¯s reasons for a consensual injurious act should be subjectively benevolent and the act must produce an overall positive balance of harms and evils, including harm to the victim¡¯s welfare interests and dignity. If these requirements are not met, the defense should be only partial. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art45 http://law.bepress.com/rutgersnewarklwps/fp/art45 Wed, 25 Jun 2008 10:15:53 PDT Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers’ abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers’ transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions. Jay A. Soled Taxation-Federal Estate and Gift http://law.bepress.com/rutgersnewarklwps/fp/art44 http://law.bepress.com/rutgersnewarklwps/fp/art44 Wed, 29 Aug 2007 08:02:06 PDT The worst national disaster in United States history also showcased the dire consequences of localism as the cultural and legal successor to de jure segregation. Long before Hurricanes Katrina and Rita devastated the Gulf Coast, New Orleans’ status as an exceptional city had been lost to Americanizing trends. Its resistance to the conventional racial binary was overcome after Reconstruction; its unique densities and accommodation of the physical landscape were transformed into sprawling divisions by technology and suburbanization. From the Brown decision forward, New Orleans and the metropolitan area around it developed much like the rest of the nation. Localist tendencies combined with legal protections for local autonomy—as exemplified and supported by several key decisions of the Burger Court—to re-segregate the region. A decade before Katrina, New Orleans, like most central cities, was financially incapable of deconcentrating neighborhoods of persistent poverty and politically powerless to wrest a more equitable sharing of state fiscal resources and burdens from its neighboring parishes. Part II examines the history of New Orleans as a city central to American concepts of racialized space, from slavery to Katrina. Part III argues that localism became the jurisprudential edifice that supplanted de jure segregation there and elsewhere after Brown. Its underlying notions of economic rationalism and colorblind innocence have since been reinforced by decentalization, consumption, political fragmentation and black middle-class antipathy for integration to re-segregate metropolitan America. Part IV argues that this analytic focus on the role of “legal localism” in re-segregating America’s metropolitan regions compels its own remedial principle: equitable regionalism. Under this principle of local government law reform, political coalitions may be possible in joining the interests of antipoverty, fair housing and community development advocates with their counterparts in smartgrowth, environmental preservation and antisprawl organizations. Urban neighborhoods chronically destabilized by poverty need localism’s emphasis on participation through planning devices; similar devices may help to effectuate equitable regional goals. The current antimajoritarian rules have weakened both cities and a great many suburbs, suggesting ultimately that what benefits the isolated urban poor may also improve the welfare of the suburban middle class. David D. Troutt Civil Rights Land Use Planning State and Local Government Law http://law.bepress.com/rutgersnewarklwps/fp/art43 http://law.bepress.com/rutgersnewarklwps/fp/art43 Wed, 25 Apr 2007 12:09:20 PDT Historically, the gift tax has performed the admirable role of safeguarding the integrities of both the estate and income taxes. Due to taxpayers’ abilities to narrow the gift tax base and ignore their filing obligations, however, fulfillment of its historical role is now in jeopardy. This analysis details how taxpayers circumvent their gift tax obligations and then sets forth reforms that Congress can readily institute to curb taxpayers’ transgressions. Institution of these recommendations would enable the gift tax to continue to fulfill its historic functions. Mitchell Gans Taxation-Federal Estate and Gift http://law.bepress.com/rutgersnewarklwps/fp/art42 http://law.bepress.com/rutgersnewarklwps/fp/art42 Tue, 17 Apr 2007 10:24:08 PDT We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 word essay, describes these problems and then offers an original and radical solution. States and the federal government could create a single pool of criminal law specialists who would both defend and prosecute criminal cases, working under the supervision of district attorneys and chief public defenders and their staffs. This re definition of the role of lawyers in the criminal process would instantly create near parity between the prosecution and the defense. It would also create a more efficient process and thus could improve the representation of criminal defendants without a substantial increase in the funds currently allocated to prosecution and criminal defense. George C. Thomas III Criminal Law and Procedure Law and Society http://law.bepress.com/rutgersnewarklwps/fp/art41 http://law.bepress.com/rutgersnewarklwps/fp/art41 Tue, 17 Apr 2007 10:14:34 PDT This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing current preemption jurisprudence. The Court’s reliance on a presumption against preemption of state laws to interpret federal statutes has declined over time, and this article provides an additional explanation for the presumption’s decline based upon flaws in the original formulation of the doctrine. The article also explores the Court’s current use of regulatory gaps as marking the plausible limits of Congressional intent to preempt, particularly when faced with the preclusion of all tort remedies for individual victims, and argues that the Court’s concern about regulatory gaps should extend to preventive measures that are also based on the states’ police powers and that are the expression of collective rights of self-protection. In addition to the standard federalism concerns that animate restraints on preemption, the article builds on scholarship that suggests additional Constitutional limitations on Congress’s powers to strip remedies from citizens. Finally, the article proposes to correct these trends through a revitalized presumption against preemption, whereby courts would consider whether a preemption ruling will create a regulatory gap, and in those circumstances should require a clear statement that Congress intended to strip remedies designed to prevent the underlying conduct at issue. Such a prudential rule of construction would avoid potential Constitutional issues. Carter H. Strickland Jr. Administrative Law Constitutional Law Environmental Law http://law.bepress.com/rutgersnewarklwps/fp/art40 http://law.bepress.com/rutgersnewarklwps/fp/art40 Mon, 16 Apr 2007 12:21:09 PDT The goal of this article is to rethink the relationship between the concepts of justification and wrongdoing, which play vital roles in the theory of criminal law. Reading George P. Fletcher’s new book, The Grammar of Criminal Law, in the context of his earlier scholarship has led me to one major disagreement with Fletcher as well as with the traditional criminal law doctrine: for Fletcher and many others, wrongdoing and justification mutually exclude each other; for me, they do not. Consider a hypothetical: a group of people are captured by criminals. The criminals are about to kill everyone but then they have a change of heart and offer their victims a deal: if Jack rapes Jill, the criminals will let everyone go. If not, no one’s life will be spared. Realizing that this is the only way to save several lives, including Jill’s own, Jack reluctantly agrees. Jill, on the other hand, vehemently protests that she would rather die than be violated. When Jack attempts to overpower her, Jill fights back and seriously injures Jack. At that moment, the police arrive and take everyone into custody. It appears that both Jack and Jill have valid defenses of justification – Jack can successfully claim necessity, and Jill can successfully claim self-defense. But is it fair to say that the two are equally right or that neither of them has committed any wrongdoing?Focusing on the problem of incompatible justifications, I suggest that we should revise our understanding of justifications in general. Specifically, I argue that, in certain circumstances, justifiable conduct may be wrongful; that in a conflict between two incompatible justifications, one side may be more right than the other; and that justifications should be viewed not as a homogenous group in which each defense has equal importance but as a hierarchical structure in which the place afforded to a defense is determined by its rationale and effect on the rights of others. The top priority belongs to justifications that do not violate rights of others and, in addition, compel others to behave in a cooperative way (the public duty defenses). The intermediate priority belongs to justifications that neither violate rights of others nor create in others a duty to cooperate (the “special relationship” and autonomy defenses). Finally, the lowest priority belongs to the defense of necessity, which, by design, may involve violation of rights of innocent, unoffending individuals. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art39 http://law.bepress.com/rutgersnewarklwps/fp/art39 Mon, 12 Feb 2007 10:52:31 PST This essay sketches the outlines of a future world in which crime has been drastically reduced. The author proposes two radical approaches to achieve this crime reduction. Some crimes, like drunk driving, can be almost completely eliminated by using technology to prevent the operation of a vehicle by a driver with a blood alcohol greater than the permissible level. Other crimes, like larceny or burglary of expensive items, can be made extremely easy to solve by requiring the installation of micro chips that will, when activated, broadcast their location to police. To the objection that it will be expensive to install the necessary technology, the answer is found in what crime costs us today. Drunk driving is estimated to cost the economy 40 billion dollars a year. The total cost of crime, much of which involves burglaries and larcenies, is estimated at 1.7 trillion dollars a year. If we could reduce that annual cost by a mere 20%, it would save the economy 350 billion dollars per year. That could pay for many sophisticated microchips and blood alcohol detectors with a lot of money left over. But do we want to live in a “Clockwork Orange” world where government prevents and deters crime by becoming more deeply embedded in our everyday life? Do we want our cars to tell us when we’ve had too much to drink? The last part of the essay probes these questions and provides a controversial answer. George C. Thomas III Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art38 http://law.bepress.com/rutgersnewarklwps/fp/art38 Mon, 12 Feb 2007 10:04:07 PST Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today’s global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another. The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes. Forthcoming 82 Notre Dame Law Review (2007) Sabrina Safrin Intellectual Property Law International Law Law and Economics Law and Society Property-Personal and Real http://law.bepress.com/rutgersnewarklwps/fp/art37 http://law.bepress.com/rutgersnewarklwps/fp/art37 Wed, 24 May 2006 13:00:09 PDT People's right to consent to pain, injury or death has always been one of the most controversial issues in criminal law and moral philosophy. In recent years, that issue has moved to the forefront of public, legislative, and academic debates in the United States and abroad due to a series of high-profile criminal trials, which involved consenting victims in various contexts--from sadomasochism and cannibalism to experimental medical treatment and mercy killing. Currently, American criminal law does not recognize consent of the victim as a defense to bodily harm, except in a few historically defined circumstances. That rule has been criticized for its arbitrary scope, outdated rationales, and potential for moralistic manipulation. Yet, despite those criticisms, no principled alternative has been worked out. This article is an attempt to develop a set of normative requirements for a new rule governing consensual bodily harm and a general defense of consent. The new rule would treat valid (voluntary and rational) consent of the victim as a defense of partial or complete justification. Partial justification is warranted by the mere fact that consensual harm does not involve at least one aspect of a paradigmatic offense, namely a rights violation. The victim was a "co-author" of his own injury and thus the perpetrator should not bear full responsibility for it. Complete justification, on the other hand, would require that, in addition to the victim’s consent, the perpetrator had a "good reason" for his harmful action: he intended to achieve a better balance of harms/evils and benefits and, in fact, managed to achieve it. This article rejects the absolute character of today’s law. Instead, it promotes a balancing test that takes into account the severity of harm to the victim's interests and dignity as well as the importance of the reasons that caused the harmful act. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art36 http://law.bepress.com/rutgersnewarklwps/fp/art36 Sun, 02 Apr 2006 18:06:43 PDT With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups will continue to be necessary but will become even more complex. The growing scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the individuated context of racial and ethnic discrimination claims. In other words, what will anti-discrimination litigation look like when all the parties involved are non-White but a racial hierarchy is alleged to exist nonetheless, and the plaintiffs are not necessarily interested in the group politics agenda of coalition building.At the present time, the majority of inter-ethnic employment discrimination claims that appear in the electronic databases of Westlaw and Lexis appear to be those in which Latinos are involved alternatively as victims and as agents of discrimination in the workplace. Latinos are thus the focus of this exploration of inter-ethnic discrimination. This focus on Latinos is supported by demographic projections that one in four job seekers will be the child of a Latino immigrant by the year 2020 and that Latino workers will increase their representation in the workforce from the current rate of 12% to 25% by the year 2050. Furthermore, as the fastest growing ethnic/racial minority in the U.S., Latinos have been celebrated in the public discourse as a multiracial people impervious to racial discrimination. Examining the context of Latino bias may thus have much to tell us about the ability of legal actors to adequately recognize and articulate the harm of inter-ethnic discrimination claims before a judiciary primarily steeped in an understanding of discrimination as solely a Black/White phenomenon.Section I of this Article will present the literature that explicates the complexity of Latino racial attitudes that is currently under-appreciated by many jurists. Section II will then analyze the emerging Latino inter-ethnic employment discrimination cases. The cases demonstrate a judicial inability to understand racial discrimination when it occurs in an inter-ethnic context. Furthermore, judges in these cases are inappropriately creating what this Article terms the Diversity Defense to discrimination allegations. The Diversity Defense describes the way in which legal actors view a racially diverse workplace as the equivalent of a racially harmonious workplace. This equivalence is implemented by viewing people of color as all the same, and overlooking the particular histories of racial animus within and across different ethnic groups. Section III therefore proposes that legal actors begin to address the particular litigation needs of inter-ethnic claims through a theory of functional racism. The Functional Racism Theory that the Article proposes is designed to enable decision makers to more effectively identify the occurrence of discrimination in inter-ethnic contexts. Tanya K. Hernandez Civil Rights Employment Practice http://law.bepress.com/rutgersnewarklwps/fp/art35 http://law.bepress.com/rutgersnewarklwps/fp/art35 Sun, 02 Apr 2006 18:06:42 PDT The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits of unreasonable searches and seizures at his prosecution. The Fourth Amendment standing requirement limits the class of criminal defendants who may invoke the exclusionary rule to those who have personally suffered a violation of their rights. This Article argues that the two doctrines are logically inconsistent with each other. The exclusionary rule rests on a foundation of deterrence that takes as its point of departure the police officer's subjective perspective of events and asks: did the information known to him justify his conduct? The standing requirement, by contrast, takes an objective approach and asks: did the reality of the criminal defendant's situation entitle her to privacy? From an objective perspective, however, no one who uses her privacy to commit a crime deserves that privacy. Therefore, the entire class of people in a position to invoke the exclusionary rule--criminal defendants--ought necessarily to lack standing to suppress incriminating evidence. As a result, the Article proposes, courts must choose between abolishing the Fourth Amendment exclusionary rule and abolishing the standing limit on its application. Sherry F. Colb Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art34 http://law.bepress.com/rutgersnewarklwps/fp/art34 Sun, 02 Apr 2006 18:06:42 PDT Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings but not others without having to explain the inconsistent treatment of group related norms. The consequences of the fact based decision making fiction appear strikingly in many contemporary same sex marriage cases, where courts treat procreative facts as decisive and avoid reconciling gay couples' exclusion from marriage with other decisions that treat sexual orientation-based differences as legally insignificant. In that light, the article tests the costs and benefits of greater candor regarding the normative underpinnings of decisions. The article also challenges the claim that courts can and should remain neutral in public debates by sustaining traditional norms when views about social groups are in contest. It argues that this position, like the judicial embrace of fact-based decision making, rests on the same flawed premise that restrictions on social groups can be evaluated based on facts alone. Our theories of judicial review will be better off, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable involvement of courts in making normative judgments about social groups. Suzanne B. Goldberg Civil Rights Constitutional Law Law and Society http://law.bepress.com/rutgersnewarklwps/fp/art33 http://law.bepress.com/rutgersnewarklwps/fp/art33 Wed, 15 Feb 2006 09:59:13 PST "It's Personal But Is It Mine? Toward Property Rights in Personal Information" discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens' loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners. In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating rights in personal information, and why individuals have a stronger moral claim to personal information than its collectors. Recognizing that individual rights may not be absolute, I further propose a way to balance them with rights of collectors and public at large, explore a range of legal and practical implications the new rules may create, and make suggestions regarding the enforcement of information privacy rights. Vera Bergelson Property-Personal and Real http://law.bepress.com/rutgersnewarklwps/fp/art32 http://law.bepress.com/rutgersnewarklwps/fp/art32 Wed, 15 Feb 2006 09:57:59 PST This article continues to develop an argument in favor of comparative criminal liability started in "Victims and Perpetrators: An Argument for Comparative Liability in Criminal Law," (http://law.bepress.com/rutgersnewarklwps/fp/art19/) Buff. Crim. L. Rev. 385 (2005). The essence of my argument is that people’s rights are not static but depend on their actions, and victims may reduce their right not to be harmed either voluntarily, by consent, waiver or assumption of risk, or involuntarily, by an attack on some legally recognized rights of the perpetrator. If that happens, perpetrators should be entitled to a defense of complete or partial justification, which would eliminate or diminish their criminal liability.In this second piece, I respond to the commentaries by Dean Hurd and Professors Harel, Husak and Simons. At the same time I further develop the theory of comparative criminal liability by focusing mainly on three groups of issues:conceptual questions involving the underlying theory of rights; application of the principle of conditionality of rights to particular areas of criminal law (e.g., assumption of risk, contributory negligence, attempts and endangerment, and multiple perpetrators); and practical implementation of the defense of comparative criminal liability. Vera Bergelson Criminal Law and Procedure http://law.bepress.com/rutgersnewarklwps/fp/art31 http://law.bepress.com/rutgersnewarklwps/fp/art31 Wed, 25 Jan 2006 10:49:40 PST Constitutional law grows more complex over time. The complexity is due, in large part, to the rule of stare decisis. When faced with precedents that it does not wish to follow, the Court usually distinguishes the case before it. Thus, the constitutional landscape is littered with cases that do not fit well together. Navigating past these shoals is often difficult for courts following the Supreme Court’s lead. One example is the law governing instructions that a trial judge can give a deadlocked jury in a criminal case. The right to a jury trial entails the right to have the jury reach a verdict without pressure from the judge, but giving voice to that principle has resulted in a bewildering array of approved instructions. This article argues that the law of 1824, manifested in Justice Story’s opinion in United States v. Perez, was superior to today’s morass. In 1824, judges had virtually uncontrolled discretion to decide when to declare a hung jury. We argue for a return to 1824 with one twist: that judges give deadlocked juries the instruction: “Please continue to deliberate.” This simple change will result in fewer hung juries and far fewer appeals about whether the instructions were too coercive. George C. Thomas III Courts Criminal Law and Procedure Legal History http://law.bepress.com/rutgersnewarklwps/fp/art30 http://law.bepress.com/rutgersnewarklwps/fp/art30 Tue, 13 Dec 2005 14:45:00 PST “It’s Personal But Is It Mine? Toward Property Rights in Personal Information” discusses the disturbing erosion of privacy suffered by the American society in recent years due to citizens’ loss of control over their personal information. This information, collected and traded by commercial enterprises, receives almost no protection under current law. I argue that, in order to protect privacy, individuals need to secure control over their information by becoming its legal owners. In this article, I confront two fundamental questions that have not been specifically addressed in the privacy literature before: why property is the most appropriate regime for regulating rights in personal information, and why individuals have a stronger moral claim to personal information than its collectors. Recognizing that individual rights may not be absolute, I further propose a way to balance them with rights of collectors and public at large, explore a range of legal and practical implications the new rules may create, and make suggestions regarding the enforcement of information privacy rights. Vera Bergelson General Law http://law.bepress.com/rutgersnewarklwps/fp/art29 http://law.bepress.com/rutgersnewarklwps/fp/art29 Thu, 01 Sep 2005 15:48:24 PDT Judicial opinions typically rely on “facts” about a social group to justify or reject limitations on group members’ rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact-based approach to decision-making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial power to retain traditional justifications for restricting group members’ rights in some settings but not others without having to explain the inconsistent treatment of group-related norms. The consequences of the fact-based decision-making fiction appear strikingly in many contemporary same-sex marriage cases, where courts treat procreative facts as decisive and avoid reconciling gay couples’ exclusion from marriage with other decisions that treat sexual orientation-based differences as legally insignificant. In that light, the article tests the costs and benefits of greater candor regarding the normative underpinnings of decisions. The article also challenges the claim that courts can and should remain neutral in public debates by sustaining traditional norms when views about social groups are in contest. It argues that this position, like the judicial embrace of fact-based decision-making, rests on the same flawed premise that restrictions on social groups can be evaluated based on facts alone. Our theories of judicial review will be better off, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable involvement of courts in making normative judgments about social groups. Suzanne B. Goldberg Civil Rights Constitutional Law