Showing papers in "New York University Law Review in 2011"

The PII Problem: Privacy and a New Concept of Personally Identifiable Information

Abstract: Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information deemed non-PII at one time can be transformed into PII at a later juncture. Due to the malleable nature of what constitutes PII, some commentators have even suggested that PII be abandoned as the mechanism by which to define the boundaries of privacy law.In this Article, we argue that although the current approaches to PII are flawed, the concept of PII should not be abandoned. We develop a new approach called “PII 2.0,” which accounts for PII’s malleability. Based upon a standard rather than a rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information that relates to either an “identified” or “identifiable” individual, and it establishes different requirements for each category. To illustrate this theory, we use the example of regulating behavioral marketing to adults and children. We show how existing approaches to PII impede the effective regulation of behavioral marketing, and how PII 2.0 would resolve these problems.

Guns, Inc.: Citizens United, McDonald, and the Future of Corporate Constitutional Rights

Abstract: The Supreme Court began its 2009 Term by addressing the constitutional rights of corporations. It ended the Term by addressing the incorporated rights of the Constitution. In Citizens United v. Federal Election Commission, a five-member majority of the Court held that corporations have a First Amendment right to spend their own money on political advocacy. A corporation generally is no different than a natural person when it comes to the First Amendment—at least as it relates to political speech. In McDonald v. City of Chicago, a plurality of the Court held that the Second Amendment to the United States Constitution is incorporated through the Due Process Clause and applies to states and municipalities. Neither the federal government nor states may prevent persons from keeping and bearing arms in their homes for self-defense.

State Enforcement of Federal Law

Abstract: Federal law is enforced through a combination of public and private efforts. Virtually all federal civil statutes vest enforcement authority in a federal agency; some also create private rights of action that permit private parties to sue to enforce federal law. Decades of commentary on the choice between public and private enforcement have generated a remarkably stable set of arguments about the strengths and weaknesses of each type. But the conventional wisdom tells only part of the story, as it ignores variations within the category of public enforcement. In fact, there are two distinct types of public enforcement. Many federal statutes authorize civil enforcement by both a federal agency and the states, typically through their attorneys general. State enforcement is largely decentralized, and states act on behalf of a set of interests that diverge significantly from those represented by federal enforcers. State enforcement also empowers a different set of agents - elected, generalist attorneys general - whose incentives and capabilities distinguish them from the appointed policy specialists who populate federal enforcement agencies. The result is a brand of public enforcement that differs markedly from the more familiar federal model. This Article exposes state enforcement of federal law as both a unique model of enforcement and a unique form of state power. Enforcement has been neglected in the federalism literature to date, which equates state power with state regulation. As I show, however, enforcement authority can serve as a potent means of state influence, enabling states to adjust the intensity of enforcement and to press their own interpretations of federal law. Importantly, enforcement authority does not depend on regulatory authority. The two typically go hand in hand: a government creates laws and then enforces them. But state enforcement of federal law breaks that link by authorizing state actors to enforce the laws of a different sovereign. Thus, state enforcement authority can thrive even in areas where state law is preempted or state regulators have chosen not to act. Enforcement also empowers a different breed of state representatives. Just as state attorneys general differ from federal agencies as agents of enforcement, they differ from state agencies as agents of federal-state interaction. Moreover, attorneys general in most states are independent from the state legislature and governor, and may represent different constituencies. Enforcement authority therefore opens up new outlets for state-centered policy, empowering actors whose interests and incentives distinguish them from the state institutions that dominate other channels of federal-state dialogue.

Changing the People: Legal Regulation and American Democracy

Abstract: The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work of contemporary scholars who write about the law of the American political process. First, the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of nineteenth-century American democracy serves as a reminder that elections, political parties and voting, while critical to democracy, are not the whole deal. It thereby challenges Law of Democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

The other loving: Uncovering the federal government's racial regulation of marriage

Abstract: This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which federal laws also restricted racially mixed marriages in the decades before 1967 (when the Supreme Court invalidated antimiscegenation laws in Loving v. Virginia). Specifically, during the American occupation of Japan after World War II, a combination of immigration, citizenship, and military laws and regulations led to restrictions on marriages along racial lines. These laws also converged to prevent married couples, many of whom were White American soldiers and local Japanese women, from living in the United States together. Accordingly, this Article claims that the confluence of immigration, citizenship, and military laws functioned as a collective counterpart to state antimiscegenation laws.

Taxes as regulatory tools: An argument for expanding New York City's taxing authority

Abstract: This Note explores the regulatory role of tax policy in New York City and argues that the City’s power to tax independently should be increased. Currently, New York City must seek permission from the New York State Legislature to impose new taxes or change the structure of existing taxes. This restriction is justified primarily by the revenue-raising function of tax policy—an analysis that ignores the important role tax policy plays in creating effective regulatory regimes. The first Part of this Note sorts out the tangled relationship between fiscal policy tools such as taxation, regulation, user fees, and spending, and suggests factors relevant to determining which tool is most appropriate to use in a given situation. The Note next discusses New York State’s scheme for distributing authority over taxation and regulation, and provides an overview of local government law. The concluding Part of this Note argues that New York City should be given more independent taxing authority and directly addresses arguments against the granting of greater municipal taxing power.