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Notre Dame Journal of Law, Ethics & Public Policy
Number of Followers: 2  Open Access journalISSN (Print) 0883-3648 Published by U of Notre Dame  [3 journals]
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- Can Armed Drones Halt the Trend of Increasing Police Militarization'
Authors: Ian Thresher
Abstract: Following presidential declarations of “war” on drugs and terror, domestic law enforcement agencies were saddled with difficult and dangerous new duties. They responded to the danger by becoming more dangerous themselves; increasingly adopting the training, tactics, and equipment of the United States military. This “militarization” of domestic police officers has, predictably, led to a breakdown in community policing, almost one thousand fatal shootings by police officers per year, and growing rifts between law enforcement agencies and the communities they are sworn to protect. In this essay, I examine whether police drones armed with non-deadly force might, perhaps paradoxically, help to curb police militarization and reduce the risk of direct, armed confrontation between civilians and police officers. I argue that while there are some drawbacks with the use of armed drones, their unique ability to keep police officers out of harm’s way, thereby negating the legal justification for the use of deadly force, would halt the need for further police militarization and dramatically reduce the number of fatal police shootings.
PubDate: Thu, 08 Feb 2018 13:58:46 PST
- Analysis of Statutory Religious Accomodations for State-Employed Religious
Objectors to Same-Sex Marriage Solemnization
Authors: Nicholas J. Schilling Jr.
Abstract: The Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage. The decision aggravated a tension between advocates of protection of religious beliefs that reject as wrong same-sex marriage and sponsors of the new legal norm of same-sex marriage as a fundamental right.Prior to—and in response to—the Supreme Court’s decision in Obergefell, at least ten state legislatures debated bills that would provide exemptions for state officials who, on religious grounds, objected to the certification of marriage licenses for same-sex couples. Unless otherwise established by state law, officials who swear an oath to protect and defend the Constitution must carry out the legal duties imposed by that oath—including certifying same-sex marriages. In North Carolina and Utah, these religious exemption bills passed and are now operational. In Alabama, Arkansas, Louisiana, Missouri, Minnesota, Oklahoma, South Carolina, and Texas, similar such bills failed to become law through the legislative process.This Note proposes model legislation for states seeking to implement a religious accommodation scheme that respects the contours of the right articulated in the Obergefell decision. Before introducing the model statute, the Note provides insight into several preliminary matters. First, the Note provides background on the propriety of religious accommodations schemes and then explores why states may seek to implement such a scheme. Moreover, the Note analyzes the accommodation schemes adopted by the state legislatures in North Carolina and Utah, and the inferred accommodation scheme promoted by the Texas Attorney General. The treatment of these issues serves as the foundation for the Note’s proposed model statutory accommodation scheme.
PubDate: Thu, 08 Feb 2018 13:58:41 PST
- Wait, Who are we Talking About Here' Searching for a Consistent
Approach to Applying RFRA to Corporations
Authors: Steven J. Harrison
Abstract: There is perhaps no idea in contemporary American law that is more publicly contentious than that of “corporate personhood.” Of all of the Supreme Court cases dealing with corporations and the corporate entity, few probably thought that a decision could surpass Citizens United in public controversy and divisiveness produced by the decision, which brought the legal fiction of the “corporate person” to the forefront of popular debate and discussion. Then came Burwell v. Hobby Lobby Stores, Inc., which not only addressed whether corporations could “act” in a manner that seemed only a possibility for “real” or “natural” persons, which recalled the contentious question in Citizens United, but did so in the context of religious liberty and women’s repro-ductive rights, both of which tend toward controversy. What could possibly go wrong' Unsurprisingly, the case is generally reviled by those who can be overly generalized as “the Left” and praised by those who can likewise be overly generalized as “the Right.” The Hobby Lobby case was so contentious precisely because it was reflective of a number of larger concerns in the popular American psyche—fear of corporate personhood, the impact of religious freedom claims in an era of expanding reproductive rights for women (and the impact of the latter, and other progressive social movements, on the former), and the ability of religiously affiliated individuals and institutions to exist and navigate within a cultural atmosphere, which is progressively more hostile to the views of conservative and traditional institutions.
PubDate: Thu, 08 Feb 2018 13:58:31 PST
- Competent Hunger Strikers: Applying the Lessons from Northern Ireland to
the Force-Feeding in Guantanamo
Authors: Sara Cloon
Abstract: The United States allows force-feeding of prisoners, regardless of their state of mind or mental health because they deem preservation of life as paramount. In the United Kingdom, a prisoner who is of a sound mind “can be allowed to starve himself to death.”1 This difference is due to the balance between the importance of preservation of life and of the right to self-determination and autonomy in medical decisions. My note will first briefly explore the history of force-feeding prisoners who are protesting for political purposes in both countries, and the relevant cases and statues that led up to the differing viewpoints on force-feeding. I will then look into and compare the specific cases of force-feeding in the recent Guantanamo Bay hunger strike and the 1981 hunger strike in Northern Ireland where ten prisoners were allowed to starve to death. Finally, I will explore what is the more ethical answer to the question of force-feeding – whether it is better to let a prisoner of sound mind choose to die or to preserve their life through force'
PubDate: Thu, 08 Feb 2018 13:58:25 PST
- Failure to Protect: Our Civil System's Chronic Punishment of Victims
of Domestic Violence
Authors: Kate Ballou
Abstract: This Note examines the effectiveness and enforceability of civil restraining orders in domestic violence cases in the wake of Town of Castle Rock v. Gonzalez, which held that there is no constitutional right to the enforcement of a restraining order. This Note analyzes the impact of Gonzales and the effectiveness of various restraining order statutory schemes more broadly. This Note subsequently addresses that as a result of experiencing continued contact from their attackers, victim mothers are more likely to have their children removed by the state in child welfare proceedings, due to the established presumption in most family courts that domestic violence victims are unfit parents. Ultimately, this Note advocates against a presumption of parental unfitness for domestic violence victims in child welfare proceedings and in favor of a more mandatory enforcement scheme for restraining orders in order to best protect the constitutional rights of victim mothers and their children.
PubDate: Thu, 08 Feb 2018 13:58:18 PST
- Efficiency, Enforcement, and Punishment
Authors: Jim Staihar
Abstract: The law and economics literature on punishment reveals strong reasons of efficiency to adopt an extreme enforcement policy for any type of crime as a means to promoting deterrence. Under such an extreme policy, a crime’s severity of punishment would be set extremely high, but its probability of punishment would be set extremely low by minimizing the resources devoted to enforcing the law against the crime. This sort of policy applied to a moderately serious crime, such as a simple assault, would seem strongly unreasonable all things considered. However, it is not immediately obvious why such a policy would be so unreasonable on the assumption that the policy would be an efficient means of promoting deterrence. In this Essay, I argue that a novel theory of deserved punishment best explains why such an extreme enforcement policy would be so unreasonable when applied to a moderately serious crime. Although such an extreme policy might be efficient, someone who commits a moderately serious crime would not deserve the extremely severe punishment he would receive under the policy. In general, I conclude that my theory of punitive desert should play an important deontological role in constraining the means by which a state may enforce its laws against any type of crime.
PubDate: Thu, 08 Feb 2018 13:58:13 PST
- Representing the United States Government: Reconceiving the Federal
Prosecutor's Role Through a Historical Lens
Authors: Scott Ingram
Abstract: For nearly 100 years courts and legal scholars have held prosecutors to the “justice” standard, meaning that the prosecutor’s first duty is to ensure that justice is done. With this command, prosecutors have increased their discretion. The modern prosecutor’s power is unrivaled in the criminal justice system. Judges and defense attorneys have ceded some of their power to prosecutors. The prosecutor’s power has led a host of commentators to critique prosecutorial use of power for a variety of reasons. Rather than add to this voluminous literature by defending or critiquing prosecutorial power, this Article challenges the underlying assumption of prosecutorial power: that prosecutors pursue justice. It argues that prosecutors should be freed from the “justice” standard and, instead, at least on the federal level, be responsive only to clearly articulated executive policy. To demonstrate how prosecutors would function in a system where they are not required to do justice, this article examines criminal enforcement of the federal government’s neutrality policy in 1793. This was the new government’s first organized foray into criminal prosecution. President George Washington and his administration proceeded based on national interest and expected their attorneys, the United States District Attorneys, to adhere and enforce the national policy. The Article begins by establishing that federal prosecutors represent the government and not the people’s interests. It then defines how the people are represented in a republican government with a particular focus on how members of Washington’s administration interpreted the concept of representation. It then describes how Washington and his administration enforced neutrality through criminal prosecution. Against this backdrop, the final section argues that our modern federal prosecutorial problems can be resolved if we reconceive the federal prosecutor’s function as a policy enforcer rather than a quasi-judicial figure.
PubDate: Thu, 08 Feb 2018 13:58:07 PST
- The Equivalence of Religion and Conscience
Authors: Lucien J. Dhooge
Abstract: This Article examines issues posed by the equation of religious liberty with secular conscience, utilizing federal law and the law in those states which have adopted religious freedom restoration acts (RFRAs). The Article initially addresses the definition of religion through an examination of applicable literature and federal and state case law. The same approach is utilized to define conscience. The Article then examines similarities between the two concepts and the implications of their equivalence. The Article concludes that religion and conscience are moral equivalents that require equal legal treatment. However, equal treatment should proceed with caution in order to address potential negative consequences.
PubDate: Thu, 08 Feb 2018 13:58:00 PST
- Hungary's Refugee Crisis: Why a Uniform Approach is Not the Solution
Authors: Yvonne Kupfermann
Abstract: The recent refugee crisis that swept over many European nations requires an inquiry into how to balance humanitarian concerns with the resources of the respective nations involved. Oftentimes, the approach is purely humanitarian, placing much of the focus on inclusion and resettlement. However, countries that stray from this humanitarian approach are often criticized. This Note aims to offer a new theoretical framework for analyzing a refugee crisis of this scope. It uses Hungary as a case study to demonstrate how history can play a role in how a refugee crisis is handled and to provide concrete examples of a country receiving backlash for implementing protectionist measures. Broadly stated, this Note highlights the importance of avoiding uniform solutions for nations of differing postures by providing the relevant factors to consider when approaching an emergency of this type.
PubDate: Tue, 19 Dec 2017 06:24:23 PST
- League of Women Voters V. State: The Rejection of Public and Private
Hybridity Within Washington State Schools
Authors: Laura Habein
Abstract: On September 4, 2015, in a 6-3 decision in League of Women Voters of Washington v, State, the Washington State Supreme Court became the first in the nation to deem charter schools funded by taxpayers unconstitutional. Charter schools in Washington are not governed by elected boards; thus, the Court found charter schools unaccountable to voters and not public enough to be deemed “common schools” under the state constitution. This recent decision splits with supreme courts in many other states who recently faced similar constitutional challenges. Thus, the question comes to mind: How public is public enough when determining the constitutionality of a charter school' This note argues that the Washington Supreme Court came to the wrong conclusion in League of Women by defining public too narrowly and in the end, failed to serve the true purpose of article IX, section 2 of the state constitution. On the spectrum between public and private, League of Women falls too far on the side of private because the Court places too much textual emphasis on the state constitution, relies too heavily on outdated precedent from over a century ago, and fails to draw the appropriate line between restricted and unrestricted funding.
PubDate: Tue, 19 Dec 2017 06:24:20 PST
- Minors in the Major Leagues: Youth Courts Hit a Home Run for Juvenile
Justice
Authors: Christina M. Dines
Abstract: Youth courts provide an efficient—albeit unconventional—alternative to the formal juvenile justice system. Although structures of youth courts vary, the purpose remains the same: to rehabilitate and deter youth offenders in a forum largely governed by their minor peers—one free of the stigma associated with the traditional justice system. This Note examines the expansion of youth courts; various structures of the courts; advantages and disadvantages of a system driven by peer mentorship and peer decision- making; typical sanctions imposed on a juvenile offender; and the wider implications of youth court from an economic and social justice perspective.
PubDate: Tue, 19 Dec 2017 06:24:15 PST
- Investigative Journalism and Counter Terrorism Laws
Authors: Clive Walker
Abstract: Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of “terrorism” and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the U.S. and U.K., this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the U.S. National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures in The Guardian and other publications. The materials were seized during an examination and detention of Miranda while he was transiting through Heathrow Airport. The journalists viewed their mission as one of ethical disclosure in the public interest of a vast web of governmental surveillance programmes. However, the U.K. Security Service (MI5) contended that Miranda was involved in ‘terrorism’ (as defined in the U.K. Terrorism Act 2000, section 1) because his mission sought to influence the government by promoting a political or ideological cause. The allegation was that disclosure of the data to a hostile state (Russia), or to terrorists, might imperil the identities of secret agents or the methods used for electronic surveillance of terrorists. Thus, the material fell into the realms of terrorism. On these grounds, Miranda was held under special detention powers relating to counter-terrorism at borders, and the materials were seized. Similar arguments were then used to persuade the editor of The Guardian to destroy other materials held in the newspaper offices. In a subsequent court review, Miranda v Secretary of State for the Home Department, the meaning of who qualifies as a ‘terrorist’ and whether the journalistic activity being pursued by Miranda, Greenwald, and others should be excluded from that depiction was explored. This paper seeks to reflect upon the complex linkages between journalistic activities and the label of ‘terrorism,’ which is becoming a primary threat to investigative journalism in the contemporary world. It will require reflection upon the conceptual nature of terrorism and journalism in a setting of ethics, public policy, and law.
PubDate: Tue, 19 Dec 2017 06:24:11 PST
- Dynamic Regulatory Constitutionalism: Taking Legislation Seriously in the
Judicial Enforcement of Economic and Social Rights
Authors: Richard Stacey
Abstract: The international human rights revolution in the decades after the Second World War recognized economic and social rights alongside civil and political rights. The Universal Declaration of Human Rights in 1949, the International Covenant on Economic, Social, and Cultural Rights in 1966, regional treaties, and subject-specific treaties variously describe rights to food, shelter, health, and education, and set out state obligations for the treatment of children. When they first appeared, these international, economic, and social rights instruments raised questions about whether economic and social rights are justiciable in domestic legal contexts and whether they can be meaningfully enforced by courts in the same way as civil and political rights.1 Today, however, constitutions all over the world place economic and social rights alongside civil and political rights in their bills of rights.2 The ‘first wave’ debate about justiciability has been replaced by pragmatic considerations of how economic and social rights can or should be enforced, and what role courts, legislatures, and the executive and administrative branches should play in achieving them.3 My objective here is to point out that much of this second wave of economic and social rights jurisprudence suffers from a lack of attention to the normative content of the ‘social legislation’ enacted to give effect to economic and social rights. I argue that scholars and courts have in the first place ignored how social legislation encodes the commitments a legal community makes to social justice in constitutionalized economic and social rights. In the second place, scholars and courts have paid insufficient attention to the role that social legislation plays in communicating constitutional norms of social justice to the government officials responsible for the administration of the state.
PubDate: Tue, 19 Dec 2017 06:24:06 PST
- The Consequences today of the United States' Brutal Post-9/11
Interrogation Techniques
Authors: Peter Jan Honigsberg
Abstract: Penetrating the minds and souls of alleged terrorists while still upholding the constitution, federal law, and the human rights obligation to treat the suspects with dignity and without torture or cruel, inhuman, and degrading treatment was not the immediate objective for high-ranking American officials and military interrogators in the early years following the attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. on September 11, 2001. Although the United States was a party to the Geneva Conventions (GC), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT)—all three of which prohibit torture and cruel, inhuman, and degrading treatment (CIDT)—the U.S. chose to ignore the restrictions of these documents.4 Propelled by the fear of another attack comparable to that of September 11th,5 the administration violated these treaties, focusing instead on the short-term goal of obtaining intelligence at any cost to deter another major attack.6 Today, anyone who has followed the evolution of U.S. interrogation methods post-9/11 knows all too well that the United States pursued an admitted policy of harsh treatment, which has been defined by many commentators as comparable to CIDT and torture.7 And the devastating consequences of our unlawful behavior have become evident over the years.
PubDate: Tue, 19 Dec 2017 06:24:01 PST
- Dead Or Alive' The Law, Policy, And Market Effects Of Legislation On
Unclaimed Life Insurance Benefits
Authors: James M. Carson et al.
Abstract: A wave of multi-state audits on the insurance industry’s use of the Social Security Administration’s Death Master File (DMF) stirred national controversy over the status of unclaimed life insurance proceeds. Multi-state investigations uncovered “asymmetric” use of the DMF among many large insurance companies. Accusations of unethical behavior led to numerous settlement agreements between state regulators and insurers. Payouts and fines stemming from these settlements already number in the billions of dollars. Legislative responses are also underway. Some states have adopted—and others are considering—legislation requiring life insurers to search the DMF to identify and pay (or eascheat) unclaimed death benefits. Currently, legislative responses vary among the states, underscoring the longstanding tension between uniformity and state-centric regulation of insurance in the United States. Some states have imposed DMF search requirements on a prospective basis. Others have attempted to apply such requirements on a retroactive basis, affecting both new and existing policies. Emerging legislation on unclaimed life insurance has significant implications for consumers, insurance markets, and even state finances. This Article focuses on the crucial question of retroactive versus prospective applicability of legislation on unclaimed life insurance benefits. In considering the financial implications and legal dimensions of this question, this Article concludes in favor of prospective applicability. Though presumably well intentioned, the downsides of retroactive legislation on unclaimed life insurance benefits outweigh the upsides.
PubDate: Tue, 19 Dec 2017 06:23:57 PST
- Criminalization Of Juror Misconduct Arising From Social Media Use
Authors: Matthew Aglialoro
Abstract: This Essay analyzes criminalization as an alternative solution to juror misconduct arising from social media use, where jury instructions fail to prevent such misconduct. Despite the lack of scholarship on the subject, criminalization is far from a radical solution—California enacted legislation in 2011 that sought to criminalize jurors’ improper use of social media. By criminalizing juror misconduct, states can deter misconduct from occurring while also instilling the importance of the jury institution in the public. At the same time, it is important to be cognizant of objections that judges and jurors may raise. This Essay proceeds in three parts. Part I outlines persistent problems that arise from the use of social media as well as several deficiencies of jury instructions. Part II lays out California’s legislative approach, where juror misconduct arising from social media use may be punished as a misdemeanor. Finally, Part III analyzes benefits that arise from criminalization as well as several anticipated objections to the approach.
PubDate: Thu, 17 Mar 2016 13:41:08 PDT
