Gilman on “The Class Differential in Privacy Law” and “The Poverty Defense”

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Michele Gilman (Baltimore) has posted two articles to SSRN. 

The Class Differential in Privacy Law, 77 Brooklyn L. Rev. 1389 (2012)

This article analyzes how privacy law fails the poor. Due to advanced technologies, all Americans are facing corporate and governmental surveillance. However, privacy law is focused on middle-class concerns about limiting the disclosure of personal data so that it is not misused. By contrast, along the welfare-to-work continuum, poor people face privacy intrusions at the time that the state or their employers gather data. This data collection tends to be stigmatizing and humiliating, and it thus not only compounds the harmful effects of living in poverty, but also dampens democratic participation by the poor. The poor interact with the government and low-wage employers in ways that are on-going and interpersonal, and as a result, the “right to be left alone” embodied in current privacy law does not protect their interests in dignity and autonomy. This article argues that poor Americans experience privacy differently than persons with greater economic resources and that the law, in its constitutional, statutory and common law dimensions, reinforces this differential. This class differential in privacy law has costs not only for the poor, but for all citizens.

The Poverty Defense, 47 Univ. of Richmond L. Rev. 495 (2013)

Poverty is correlated with crime, but it is widely assumed that it should not be a defense. In the 1970s, Judge David Bazelon challenged this assumption, proposing a rotten social background defense, that is, how growing up under circumstances of severe deprivation can subsequently impact a criminal defendant’s mental state and actions. Relatedly, other theorists have posited that poverty should be a defense to crime based on poverty’s coercive aspects or because society forfeits its right to condemn when it tolerates significant economic inequality. Critics counter that a poverty defense should not be adopted because it is not only inconsistent with American norms of individual responsibility, but also practically impossible. This vigorous debate has been deemed an ivory tower exercise. Yet scholars have entirely overlooked that a poverty defense is utilized in thousands of cases a year. In both civil and criminal child neglect cases, various states excuse conduct that would otherwise be neglect on account of a parent’s poverty. In short, a poverty defense is not hypothetical. Courts’ interpretations of the poverty defense in child neglect cases reflect the various theoretical strands posited by scholars. The case law reveals that a poverty defense is workable, but that its potential to help poor defendants is limited unless courts have a rich, multi-dimensional understanding of the causes and effects of poverty. This article explains how the poverty defense works in practice in child welfare cases, and can guide scholars, and more importantly, lawmakers and courts, in considering whether to extend a poverty defense to other areas of the law.

-Bridget Crawford

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