In my last post, I discussed the Fourth Amendment, the third party doctrine, and the Carpenter case (which involved information secured from a cell phone company about a consumer’s cell phone location). In that post, I discussed the third party doctrine generally and applied it to Carpenter as an illustration. But Carpenter has an important feature, noted by other bloggers and commenters, that goes beyond the narrow question of the third party doctrine: Congress has passed a statutory provision that protects against the disclosure of information about cell phone customers.
Like Mark Pulliam, I think a lot about Robert Bork: anyone who teaches either antitrust law or constitutional law should, and I teach both. He was great scholar. In particular, he powerfully challenged the conventional views of living constitutionalism that dominated his time and begin to make the intellectual case for originalism. But it was only the beginning of the case and does not mark the best understanding of originalism today.
One of the important differences between American constitutional law and the constitutional law of much of Europe and of many countries throughout the world is the use of proportionality analysis outside of America. Proportionality analysis can be thought of in several ways, but it is primarily a doctrinal tool used to analyze whether an individual constitutional right can be regulated by the state. The PA analysis generally considers the following aspects: 1. Does the legislation (or other government action) establishing the right’s limitation pursue a legitimate objective of sufficient importance to warrant limiting a right? 2. Are the means in service of the…
Recently, I have been studying comparative constitutional law. It is a fascinating area, providing real world examples for the issues that constitutional theory explores. What is more, the practices of other constitutional judiciaries are often unexpected. I often find myself saying, “do they really do that?”
One example is the recent constitutional case, decided by the Supreme Court of India, finding that the Indian Constitution provides a nontextual right to privacy.