Person:

Gersen, Jeannie

This essay is about the representation of privacy. Focusing on several of the Supreme Court's Fourth Amendment cases regarding the police and the home, I explore judicial articulations of the meaning of private space. Several striking figures of women appear in the Justices' opinions in Kyllo v. United States, and Georgia v. Randolph, for example, and represent different conceptions of privacy that are in dialogue and conflict. To theorize privacy in the home is to imagine a woman, and the way she is imagined is bound up with the idea of the home and stakes of privacy articulated. From the lady of the house in the bath, to the lady at home receiving callers, to the battered woman, distinctive figures of women reveal peculiar fault lines in the modern meaning of privacy in an era of judicial commitment to gender equality. Even long after the gradual demise of the particular marital privacy associated with the common law of coverture, the idea of protecting women from men remains central and appears today in new and different guises that evince both change and continuity in the legal meaning of the home.

Self-defense is undergoing an epochal transformation. In the last few years, dozens of states have passed or proposed new Castle Doctrine legislation intended to expand the right to use deadly force in self-defense. These bills derive their informal name from the traditional common law castle doctrine, which grants a person attacked in his own home the right to use deadly force without trying to retreat to safety. But the new Castle Doctrine statutes, conceived and advocated by the National Rifle Association, extend beyond the home to self-defense more broadly. This Article sets out to explicate, contextualize, and theorize this remarkable development in self-defense law. To do so, the Article investigates the ideas that shape these new Castle Doctrine laws. It offers an interpretive genealogy focused on three crucial turning points in the development of self-defense, and argues that each has left a defining ideological trace on the new laws. The central claim is that in each phase, self-defense law drew importantly but differently on the idea of the home; and, in each, the operative idea of the home was constituted specifically by gender roles therein. The Article shows that modern self-defense law exemplified by the new Castle Doctrine powerfully embeds these distinctive meanings of gender, home, and crime.

Though traditionally criminal law did not reach into the home to punish domestic violence, today such intervention in the home is well accepted and steadily growing. Because we all welcome that remedial development, we have taken little notice of the legal innovations in misdemeanor domestic violence enforcement that are transforming the role of criminal law in the home beyond the criminal punishment of violence. An important legal tool in this transformation is the protection order, which bans a person from the home on pain of arrest and enables treatment of presence at home as a proxy for violence. Through prosecutors' routine deployment of protection orders in the criminal process at arraignment, plea bargaining, and sentencing, the home is becoming a space in which criminal law deliberately reorders and controls private rights and relationships in property and marriage - not as an incident of prosecution but as its goal. The growing criminal law use of protection orders to prohibit the cohabitation and contact of intimate partners (often when substantial jail time is not imposed) is a form of state-imposed de facto divorce that subjects the practical and substantive continuation of intimate relationships to criminal sanction. This displacement of the choice to live like intimate partners exemplifies the changing legal meaning of the home, wherein the archetype of private space becomes a site of intense public investment suitable for criminal law control.

Fashion is one of the world's most important creative industries. As the most immediate visible marker of self-presentation, fashion creates vocabularies for self-expression that relate individuals to society. Despite being the core of fashion and legally protected in Europe, fashion design lacks protection against copying under U.S. intellectual property law. This Article frames the debate over whether to provide protection to fashion design within a reflection on the cultural dynamics of innovation as a social practice. The desire to be in fashion - most visibly manifested in the practice of dress - captures a significant aspect of social life, characterized by both the pull of continuity with others and the push of innovation toward the new. We explain what is at stake economically and culturally in providing legal protection for original designs, and why a protection against close copies only is the proper way to proceed. We offer a model of fashion consumption and production that emphasizes the complementary roles of individual differentiation and shared participation in trends. Our analysis reveals that the current legal regime, which protects trademarks but not fashion designs from copying, distorts innovation in fashion away from this expressive aspect and toward status and luxury aspects. The dynamics of fashion lend insight into dynamics of innovation more broadly, in areas where consumption is also expressive. We emphasize that the line between close copying and remixing represents an often underappreciated but promising direction for intellectual property today.