Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases

Eric R. Carpenter

Volume 68, Issue 2, 225-258

Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man. In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of rape.

If Kahan is right, radical change may be necessary. The institutions responsible for handling sexual assault complaintslaw enforcement, the military, and university and college administrationsare stratified and hierarchical, and are likely over-populated by people who are attracted to hierarchical institutions and who hold hierarchical worldviews. These institutions may need to be overhauledor even replaced. However, the study has a serious methodological flaw: It uses the Hierarchy-Egalitarianism Scale to measure those hierarchical worldviews, and as this Article demonstrates, this scale has reliability and validity issues.

This Article then applies a different methodology to the underlying data and shows that patriarchy, not hierarchy, explains the differences in guilt perceptions. This more accurate understanding of Kahan’s data carries important policy implications. Rather than radical change, targeted training that addresses inaccurate rape beliefs may be enough to ensure accurate processing of these cases.

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How the Constitution Became Christian

Jared A. Goldstein

Volume 68, Issue 2, 259-308

Movements dedicated to making the United States a “Christian nation” have been a recurrent feature in American politics for more than 150 years. Over that time, however, the relationship between Christian nationalism and the Constitution has undergone a dramatic change. Nineteenth century Christian nationalists denounced the Constitution as a godless document unworthy of a Christian nation and fought for an amendment to express the nation’s Christian faith. In contrast, the contemporary Christian Right that coalesced in the 1970s lauds the Constitution as the highest expression of the nation’s Christian identity.

This Article asks how the Constitution becamefor many Americans, at leastChristian. The answer lies in America’s constitutional culture, which channels conflicts over national identity into constitutional disputes. The Constitution is conventionally portrayed as the embodiment of what it means to be American, but it is more accurate to describe the Constitution as the battleground over which disputes over national identity are fought.

This Article illustrates the dynamics that transform conflicts over national identity into constitutional conflicts by examining three movements in the longstanding debate over whether the United States should be understood to be a Christian nation: the nineteenth century Christian Amendment movement, mid-twentieth century Judeo-Christian nationalism, and the New Christian Right that began in the 1970s and 1980s. Although these movements differ in significant ways, they follow a similar pattern. In each case, members of the dominant religious group mobilized in response to perceived threats to their statusfrom Catholics, immigrants, communists, and secular humanists. In each episode, members of the mobilized movement believed Christian devotion to be part of America’s essence and therefore considered threats to Christian dominance as attacks on America itself. And in each case, the movement attempted to preserve the nation’s supposed Christian identity by making constitutional demands, either to amend the Constitution to proclaim the nation’s Christian devotion or to interpret the Constitution to be Christian.

Through this recurring patternin which a threat to group status is understood in nationalist terms and motivates a movement that makes constitutional demandsfights about what it means to be American become fights over the meaning of the Constitution. Rather than embodying what it means to be American, the Constitution provides a seemingly neutral and patriotic language for making claims of national inclusion and exclusion, for asserting that some people and some values are authentically American, while others are dangerously foreign and must be rejected.

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Smart Cities, Big Data, and the Resilience of Privacy

Janine S. Hiller and Jordan M. Blanke

Volume 68, Issue 2, 309-56

Smart Cities are designed to ubiquitously collect information about people, places, and activities and to use that data to provide more efficient services and to build resilience against disasters. Projects like the Rockefeller Foundation-funded “100 Resilient Cities” are exploring how big data can be used to design and strengthen resilience in cities around the world. Large technology companies are helping to design and secure components of the Internet of Everything, which is part of a smart city structure. Relationships between governments and citizens, as well as between individuals and businesses, will see substantial changes due to this rapidly expanding collection and use of potentially intimate information. In this dynamic environment, it is difficult to protect privacy under traditional principles that did not anticipate a sensor-connected, surveillance-laden, data-driven world of the smart city. Slow moving court cases and inflexible fair information privacy practices may be insufficient to limit and/or guide smart city implementation that respects individual privacy. Cities need a methodology that will enable a discussion of how law, regulation, and social norms can respond to the dynamic disruption that a smart city poses to the fundamental nature of privacy.

This Article proposes that resilience theory can be a useful lens for this analysis. Resilience theory has multidisciplinary roots in engineering, biology, ecology, and sociology, and is generally understood as a way to understand how systems react to extreme pressureswhether they decline and die, or whether they adapt and thrive. The theory is used to describe multiple aspects of systems and organisms, from the ability of a building to withstand an earthquake to the ability of an organism not only to survive, but to also evolve into a different and possible better state. This Article views privacy as a system and examines it through the resiliency lens, framing the question of how privacy can adapt and survive in a smart city.

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Trade Secret Precautions, Possession, and Notice

Deepa Varadarajan

Volume 68, Issue 2, 357-96

To obtain trade secret protection, a firm must take reasonable secrecy precautions (“RSP”) to guard the confidentiality of claimed information. The RSP requirement has long puzzled courts and scholars. In other areas of property and intellectual property law, such self-help is not a prerequisite for legal rights. Landowners, for example, do not have to fence their property as a condition of ownership. Requiring claimants to take secrecy precautions also seems to contradict trade secret law’s underlying rationales of promoting innovation and information sharing. Existing scholarship fails to provide a convincing justification for the requirement or explain how it advances the policy concerns animating trade secret law

This Article demonstrates that traditional property law’s “possession” doctrine can provide a useful lens for understanding the RSP requirement. In property law, affirmative acts of possession lead to ownership because they notify a relevant audience about claims to property. Drawing insights from possession doctrine, this Article argues that the primary purpose of the RSP requirement should be to notify a relevant audience (employees and other business partners) about the existence and boundaries of claimed trade secrets and thus reduce information costs for that audience. Requiring trade secret owners to provide clearer ex ante notice promotes follow-on innovation and employee mobility, concerns that are important to trade secret law. Accordingly, this Article suggests areas of reform in courts’ RSP analysis to enhance the requirement’s notice function.

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Correcting Computer Vision: The Case for Real Eyes After Lenz

M. Jake Feaver

Volume 68, Issue 2, 397-418

The internet brought plentiful opportunities for sharing content between individuals. However, along with those opportunities, the potential for abuse and intellectual property infringement increased steadily. When Congress passed the Digital Millennium Copyright Act it attempted to provide protection for the service providers that served as the foundation for the internet’s prosperity and for the content producers who grew its fruits. In accordance with this Act, service providers and copyright enforcers built algorithms to determine when content was infringing and when it was not.

The recent Ninth Circuit decision in Lenz v. Universal Music Corp. established that a copyright holder must “consider fair use” before they can request that content be taken down by a service provider. This Note discusses how an algorithm might “consider fair use” in accordance with Lenz, and argues that in the marginal cases where the likeness is too close to call, human review of potential infringements will nevertheless be necessary to comply with the Digital Millennium Copyright Act.

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Changing Tides for Captive Marine Mammals: What the Future Holds for Captive Care Requirements

Isabella Langone

Volume 68, Issue 2, 419-44

When the marine mammal entertainment industry emerged in the 1960s, companies like SeaWorld captured orcas and dolphins from the wild and put the animals on display to bring joy and entertainment to the masses. In 1972, Congress enacted the Marine Mammal Protection Act, which prohibited the capture of marine mammals from the wild. In response to this legislation, SeaWorld and other parks implemented breeding programs to maintain their mammal collection without having to capture wild animals. Conservationists and animal rights activists have protested this practice for decades, but only recently has the larger public engaged in widespread disapproval of marine mammal captivity. In recent years, massive public protest erupted over the conditions in which captive marine mammals, particularly orcas, live. The public rallied alongside conservationists and animal rights activists with unprecedented and unexpected fervor, calling for change in the marine mammal entertainment industry, or even its end altogether.

SeaWorld responded to public demand, announcing on March 17, 2016, that it would immediately stop its orca breeding program. Conservationists, animal rights activists, and the public celebrated this monumental step, but questions still remain as to what should be done to improve the lives of the remaining captive marine mammals. There is debate over whether SeaWorld should be compelled to release its captive animals into open-sea sanctuaries, or if it should be allowed to keep its animals in captivity for the remainder of their lives. While there are valid arguments on both sides of this debate, it seems that at least for the time being, marine mammal captivity is here to stay. This Note therefore examines the legal mechanisms that govern the captive care of marine mammals and how the law might be applied in novel ways to ensure more stringent captive care requirements for marine mammals.

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