Individual liberties

  • January 28, 2015
    BookTalk
    Cases on Reproductive Rights and Justice
    By: 
    Melissa Murray and Kristin Luker

    by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley

    I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights.  When asked at dinner parties, I volunteered that I taught criminal law and family law.  When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation.  Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.

    It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice.  As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction.  The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.

    My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015.  Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice.  As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook.  Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.

  • November 4, 2014
    Guest Post

    by Lawrence O. Gostin, University Professor and Founding O’Neill Chair in Global Health Law at Georgetown University Law Center, and Eric A. Friedman, Associate at O’Neill Institute for National and Global Health Law at Georgetown University Law Center.

    As fears of Ebola sweep the nation, several governors are instituting quarantine and other restrictive policies based on fear, not science. These appear to reflect political agendas and responding to the public’s clamoring for greater protection, expressed as an over-abundance of caution. But the rule of law stands precisely to prevent the state from depriving individuals of liberty based on irrational or exaggerated public fear. Legal standards on the state’s police powers to protect the public’s health and safety are well developed. Civil confinement of individuals who have not committed an offense is a massive deprivation of liberty that requires a clear justification beyond public fear. State statutes and constitutional law require sound scientific evidence of significant risk, reflecting a delicate balance between public health and civil liberties. Current quarantines (and calls for travel bans) are reminiscent of 19th Century views of walling off borders, which is impossible in a modern globalized world.

    The touchstone of the law is public health necessity. Imposed quarantines represent a significant burden on people’s liberty, leading courts and legislators to create a high standard that must be met for mandatory quarantines. States such as New York require that quarantines be “necessary” to protect the public’s health. New Jersey's quarantine law requires a quarantine to be “by the least restrictive means necessary to protect the public health.” Simply put, a quarantine that is at odds with public health and scientific knowledge is also at odds with the law.

  • October 8, 2014

    by Caroline Cox

    Ned Resnikoff reports for MSNBC on Integrity Staffing Solutions v. Busk, a labor case that is being heard before the Supreme Court this morning. The case questions whether workers should be paid overtime for the time spent waiting on mandatory security checks.

    In The Nation, Zoë Carpenter reports that the debate over abortion access is headed to the Supreme Court.

    Mugambi Jouet writes for the New Republic on what Attorney General Eric Holder does not understand about the death penalty.

    In the blog for the Brennan Center for Justice, Victoria Bassetti argues that the recent spate of political scandals reveals the dangers of money in politics.

    Lyle Denniston offers for SCOTUSblog the latest updates on the decision from the U.S. Court of Appeals for the Ninth Circuit to clear the way for same-sex marriages in Idaho and Nevada and the Supreme Court’s order to postpone the ruling.

    In Bloomberg View, Noah Felman takes a look at Tuesday’s oral arguments in Holt v. Hobbs, a case concerning whether a Muslim inmate could be forced to shave his beard. 

  • April 25, 2014

    On Monday, the Supreme Court “declined to review an executive order issued by Florida Governor Rick Scott that had required all state employees take random drug tests,” leaving in place a decision by the U.S. Court of Appeals for the Eleventh Circuit that Gov. Scott’s order was too broad.
     
    Shalini Goel Agarwal of the American Civil Liberties Union, who represents the American Federation of State, County and Municipal Employees in the litigation, stated that “without a threat to public safety or a suspicion of drug use, people can't be required to sacrifice their constitutional rights in order to serve the people of Florida.” Lawrence Hurley at Reuters has the story.
     
    On Tuesday, the high court heard oral argument for a case involving “a request from television broadcasters to shut down Aereo, an Internet start-up they say threatens the economic viability of their businesses.” Adam Liptak at The New York Times breaks down American Broadcasting Companies, Inc. v. Aereo, Inc.
     
    Writing for The Daily Beast, Michael Waldman explains why, when it comes to “executive actions to improve our democracy” President Obama “should go further on voting and transparency to make government work better.”
     
    TPM’s Sahil Kapur notes “the Supreme Court's unprecedented public clash over race.”
  • December 16, 2013

    by Nicholas Alexiou

    In a potentially significant ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia has found that the National Security Agency’s (NSA) bulk collection of phone metadata program likely violates the Fourth Amendment.

    In Klayman et al. v. Obama et al., Plaintiffs Larry Klayman (founder of the conservative Judicial Watch and Freedom Watch) and Charles Strange (father of a Michael Strange, a slain Cryptologist Technician with Navy SEAL Team VI, who has been a vocal opponent of President Obama) allege, in part, that the NSA collection program violates the First, Fourth and Fifth Amendment of the U.S. Constitution. They sought a preliminary injunction that would prohibit the NSA from collecting the plaintiff’s call records under the existing collection program, require the destruction of all records already collected, and prohibit the “querying” of any metadata already collected.

    Judge Leon has found that plaintiffs have standing to challenge the NSA’s program, regardless of whether the program was in accordance with the rulings of the Foreign Intelligence Surveillance Court (FISC), and that the plaintiffs have shown both “a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” Therefore, Judge Leon granted, in part, plaintiff’s motion for a preliminary injunction; but recognizing the “significant national security interests at stake . . . and the novelty of the constitution issues” the injunction is stayed pending an appeal. Finding sufficient evidence to grant the preliminary injunction on Fourth Amendment grounds, Judge Leon did not address either the First or Fifth Amendment arguments.

    In analyzing the Fourth Amendment question, Judge Leon notes that the scope and technological sophistication of the NSA program far surpasses any other governmental surveillance program previously examined by the judiciary. In 1979, the Supreme Court ruled in Smith v. United States that an individual had no legitimate expectation of privacy in the numbers they dialed on their phone, for they were voluntarily submitting them to the telephone company. Therefore, a pen register installed by the police without a warrant was not barred by the Fourth Amendment as it did not constitute a “search.”