法律翻译 |《纽约法律评论》第97卷第4期

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Policing agencies in the United States are engaging in mass collection of personal data, building a vast architecture of surveillance. License plate readers collect our location information. Mobile forensics data terminals suck in the contents of cell phones during traffic stops. CCTV maps our movements. Cheap storage means most of this is kept for long periods of time—sometimes into perpetuity. Artificial intelligence makes searching and mining the data a snap. For most of us whose data is collected, stored, and mined, there is no suspicion whatsoever of wrongdoing.

美国的警察机构正在进行大规模的个人数据收集，并建立庞大的监控体系。车牌识别器收集我们的定位信息；在交通堵塞期间，移动数据采集终端收集手机里的内容；闭路电视监控系统定位并标记出我们的活动痕迹。低成本的存储方式意味着大多数数据将被长期——有时甚至是永久地保存。人工智能使得搜集和分析这些数据变得轻而易举。大多数人的数据都被收集、存储、分析，并且这些个人数据收集行为并不被怀疑是“不当”的。

This growing network of surveillance is almost entirely unregulated. It is, in short, lawless. The Fourth Amendment touches almost none of it, either because what is captured occurs in public, and so is supposedly “knowingly exposed,” or because of the doctrine that shields information collected from third parties. It is unregulated by statutes because legislative bodies—when they even know about these surveillance systems—see little profit in taking on the police.

In the face of growing concern over such surveillance, this Article argues there is a constitutional solution sitting in plain view. In virtually every other instance in which personal information is collected by the government, courts require that a sound regulatory scheme be in place before information collection occurs. The rulings on the mandatory nature of regulation are remarkably similar, no matter under which clause of the Constitution collection is challenged.

This Article excavates this enormous body of precedent and applies it to the problem of government mass data collection. It argues that before the government can engage in such surveillance, there must be a regulatory scheme in place. And by changing the default rule from allowing police to collect absent legislative prohibition, to banning collection until there is legislative action, legislatures will be compelled to act (or there will be no surveillance). The Article defines what a minimally acceptable regulatory scheme for mass data collection must include and shows how it can be grounded in the Constitution.

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The Supreme Court’s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution would permit multistate or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a foreign defendant, no such state may exist.

This issue potentially implicates a range of difficult and unsettled doctrinal, practical, conceptual, and theoretical questions—about both personal jurisdiction and class actions. This Article, however, proposes a clean solution that coheres with existing case law while retaining the vitality of class actions to provide meaningful remedies in cases where systemic wrongs have nationwide consequences. On this approach, specific jurisdiction would be proper in any case where (a) there is specific jurisdiction over the named plaintiff’s claim against the defendant; and (b) a class action led by that plaintiff would satisfy the certification requirements of Rule 23. This solution finds support not only in longstanding practice prior to Bristol-Myers, but in the more fundamental principles and policies underlying specific jurisdiction. The impact of these underlying values has been further bolstered by the Supreme Court’s most recent decision on personal jurisdiction—Ford Motor Co. v. Montana Eighth Judicial District Court. The upshot is that personal jurisdiction can exist over a class action even if the forum state would not have personal jurisdiction over a hypothetical separate action by an out-of-state individual who is an unnamed member of the class.

Moreover, this Article’s proposal makes it unnecessary for courts to confront thornier questions that would otherwise arise. Those questions include: the proper timing and procedural mechanism for objecting to personal jurisdiction with respect to the claims of unnamed class members; whether the jurisdictional constraints apply differently in federal courts and state courts; whether they apply differently to claims based on substantive federal law as opposed to state-law claims; the precise scope and justification for pendent personal jurisdiction; and the extent to which post-service events in federal court (such as class certification) are subject to the more expansive Fifth Amendment test for federal court personal jurisdiction. Under this Article’s solution, courts have a straightforward way to examine personal jurisdiction over class actions that does not hinge on or implicate these other issues.

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Supreme Court “companion cases” are decisions released on the exact same day that address substantially similar legal or factual matters. The list of consequential Supreme Court decisions that the Justices have resolved as part of a set of companion cases is lengthy: It includes NLRB v. Jones & Laughlin Steel Corp., Korematsu v. United States, Brown v. Board of Education, Terry v. Ohio, Roe v. Wade, Miller v. California, and Gregg v. Georgia. Although it is not surprising that important topics like civil rights and abortion generate significant amounts of litigation, the Supreme Court’s practice of conducting plenary review of multiple similar cases and issuing separate decisions resolving each one should give us pause. The Justices have a number of other procedural tools available for disposing of similar matters for which parties seek review. Options include granting certiorari for only one of the cases, vacating and remanding some of the matters, issuing at least one summary disposition, consolidating the cases, or releasing the decisions at very different times. The Court sidesteps these alternative approaches when it issues companion cases. Yet previous scholars have not devoted adequate attention to this practice as a distinct procedural mechanism, with unique characteristics that may motivate its usage. This Note fills that gap by studying some of the Court’s most famous companion cases and taxonomizing them into four categories—coordinate hedges, contested hedges, extensional reinforcements, and applicative reinforcements—based on factors including the voting behavior of the Justices and the constitutive decisions’ relationships to each other. The Note leverages that taxonomy to frame its analysis of why the Court chose to issue companion cases given all the procedural alternatives. This Note concludes by discussing how the practice of deciding certain sorts of companion cases—in which a majority of the Justices agree that they should resolve similar cases in ostensibly contradictory ways—may improve the Court’s legitimacy by accentuating its responsibility and capacity to collaboratively identify subtle distinctions between comparable cases that compel different outcomes.

最高法院的“相伴案件”是指在同一天发布，并涉及实质上类似的法律或事实问题的裁决。作为一系列“相伴案件”的一部分，大法官们作出的最高法院的一系列重大判决实际上也十分冗长：这其中包括NLRB v. Jones & Laughlin Steel Corp.案, Korematsu v. United States案, Brown v. Board of Education案, Terry v. Ohio案, Roe v. Wade案, Miller v. California案以及 Gregg v. Georgia案。虽然诸如公民权利、堕胎这类议题产生大量的诉讼并不令人惊奇，但最高法院对此的做法值得我们深思：对多个类似案件进行全面审查，并且对每个案件发布单独的判决。大法官们有许多其他程序性工具可以帮助处理当事人寻求审查的相似事项。这些程序性工具包括：只对一个案件批准调卷令；撤销和发回重审部分案件；发布至少一个简易裁决；合并审理案件；在不同的时间发布判决。当最高法院发布“相伴案件”时，他们并未适用上述这些替代方法。然而，以前的学者并未将最高法院这种做法当做一种独特的程序机制并对其投入足够的关注。这种程序机制所具有的不同寻常的特征可能正是促进其被使用的原因。本文通过分析最高法院一些最著名的“相伴案件”，并根据法官的投票行为以及构成性判决之间的关系，将这些“相伴案件”分为四类——协调性对冲、竞争性对冲、扩展性强化和适用性强化，以此填补了针对上述最高法院做法的研究空白。该分类构建了本文的研究框架，从而分析：为何即使存在其他所有的替代性选择时，法院仍然选择了发布“相伴案件”。在结尾，本文讨论了裁决某些类型的“相伴案件”时的作法——在这些案件中，大多数大法官同意，他们应当以表面上相互冲突的方法来解决相似案件，即通过强调法院的责任和能力，来共同识别具有不同判决结果的相似案件之间的细微区别，从而提高最高法院的合法性。

In the tempestuous process of defining communities of interest for legislative redistricting—a process that will inevitably spark disagreement, dissatisfaction, and dissent—deferring boundary-setting to a physical, objective metric established by a community itself would appear to be a safe harbor, insulating line-drawers from criticism. The eruv—a physical structure encircling a Jewish community whichallows observant Jews to carry items outside the home on Shabbat—presents redistricters with an attractive way to craft districts that give political voice to the Jewish community. However, this Note argues that rather than serving as a safe harbor, this use of the eruv in redistricting presents a constitutional hazard, as it may run afoul of the Establishment Clause. The Supreme Court’s Establishment Clause jurisprudence clearly forbids a state from “delegat[ing] its civic authority to a group chosen according to a religious criterion.” The use of an eruv as a basis for redistricting, this Note argues, is precisely such a delegation: The state delegates its power to determine the boundaries of a community and the resultant district lines to religious authorities and a religious community, bucking the neutrality commanded by the Establishment Clause. While the precise shape of a particular district and the inputs leading to its creation will determine the presence of an Establishment Clause violation, the potential for such a violation in the case of eruv-based districts—and the concomitant potential for the politicization of religion and increased political division—has heretofore gone unnoticed.

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