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In Defense of the Juggernaut: The Ethical and Constitutional Argument for Prosecutorial Discretion
Get PDFWithin days of the Supreme Court’s decision overturning Roe v. Wade, progressive prosecutors throughout the country announced that if their jurisdictions enacted restrictions on abortion, they would not prosecute the individuals who had these procedures or the doctors who performed them. This is the latest example of situations, like drug crimes, illegal gun possession, and other offenses, where prosecutors have declined to enforce a state law as a matter of public policy. Critics of this broad use of prosecutorial discretion have argued that it violates the constitutional separation of powers.
This Article argues that prosecutorial discretion is well-founded in American history, ethics, and constitutional law. This Article examines the history of prosecutors as elected officials and the impact the election process has had on the exercise of discretion in charging decisions. It explores the ethical and constitutional framework in which the exercise of prosecutorial charging discretion takes place and examines how prosecutors on both ends of the political spectrum have used charging discretion as a means of furthering public policy. This Article concludes by arguing that prosecutorial discretion is a critical part of our nation’s careful system of checks and balances, and that this discretion reinforces, rather than undermines, the separation of powers
Navajo Statehood: From Domestic Dependent Nation to 51st State
Get PDFThe Supreme Court’s recent holding in Oklahoma v. Castro-Huerta that “Indian country is part of the State, not separate from the State” is a reminder of tribal sovereignty’s precarious foundation under U.S. law. The Court’s holding not only broke with longstanding precedent regarding the relationship between tribes and states, but it is also incompatible with the lived experience of those living in the Navajo Nation. The Navajo Nation, not the states and not the federal government, has primary responsibility for governing an area roughly the size of West Virginia. Yet most maps of the United States demarcate only state boundaries, obscuring the existence of Indian nations as the third type of sovereign operating within the borders of the United States.
The inability or unwillingness of the U.S. Supreme Court, and to some extent all other non-Indian governance institutions at the state and federal level, to take tribal sovereignty seriously forces a question: Should the Navajo Nation pursue statehood? Such a question may seem far-fetched or merely an academic thought experiment, but there is historical precedent for contemplating the idea that an Indian nation might form a state. Moreover, journalists, academics, and politicians have floated the possibility that the Navajo Nation already meets many of the attributes required to form a new state. So, although the idea of the Navajo Nation becoming the fifty-first state of the Union seems farfetched, considering the possibility provides a way to better understand both statehood and the hard choices Indian nations must make
Fear and Loathing in the American Workplace: Paving the Bog of Logomachy
No full text“Let me explain it to you, let me run it down just briefly if I can. We’re looking for the American Dream, and we were told it was somewhere in this area.” The so-called “American Dream” has been invoked in popular discourse to represent the American ideal that one who is willing to work hard can achieve a better life than their parents
French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health
No full textIn the 1970s, a prominent actress sought to aid the resettlement of Vietnamese refugees by running a vocational training program, spurring a “butterfly effect” that would create the modern American nail salon. People who immigrated from Vietnam—beginning with the twenty women who received the actress’s manicure training—gradually and significantly transformed the nail salon industry. What once was an unaffordable and unattainable experience available only to elites blossomed into an “affordable luxury” for many Americans. As manicures, pedicures, and other nail design services become increasingly popular, customer demands continue to bolster the booming industry; in fact, between 2014 and 2019, the number of U.S. nail salons doubled. Even with strict government imposed health and safety precautions at the height of the COVID-19 pandemic, nail salons have successfully rebounded to meet customer demands. Today, the brick-and-mortar nail salon industry is worth over $8 billion and is expected to continue to grow over the next decade
Panel 5 - The Future of Employment Law
Get PDFFACILITATOR: All right everyone, welcome to our last panel, “The Future of Employment Law.” I want to quickly introduce our moderator, Karla Gilbride, the co-director of the Access to Justice Project. Karla, you can take it away
The Trouble With the WIPO Broadcasting Treaty
Get PDFThe World Intellectual Property Organization (WIPO) is a specialized UN body that provides forums to discuss intellectual property policies and practices, provides technical assistance to its member states and engages in norm setting. Since 1997, WIPO has engaged in a series of activities to evaluate proposals advocated by some companies that are engaged in broadcasting. There is yet another effort to bring this proposal to a diplomatic conference. This article (i) provides background on the negotiations including the evolving rationales for broadcast right; (ii) describes the differences between the thin temporary signal protection model and the far more problematic vision of a layer of durable post-fixation rights; (iii) highlights the failure of WIPO to undertake and evaluate any economic analysis of the impact of a treaty on the distribution of income between countries and between qualifying broadcasting organizations and authors, performers and audiences, and (iv) identifies the most troubling features of the current proposal
Fixing a Broken Character Evaluation Process
No full textIn March 2023, U.S. Surgeon General Vivek Murphy wrote in the New York Times about the growing and “devastating” crisis in adolescent mental health. His findings were consistent with the 2021 Survey of Law Student Well-Being that revealed that law students are struggling, and in greater numbers than in the last survey in 2014. Forty percent of more than 5,000 survey respondents indicated having been diagnosed with anxiety in their lifetime, and 33% indicated having been diagnosed with depression. These numbers increased from 21% and 18% respectively, nearly doubling during this seven-year period. Similarly, law student thoughts around suicide rose significantly during this period: Eleven percent of respondents had thought seriously about suicide in the prior 12 months compared with 6% just seven years earlier, and one-third of respondents had thought about suicide sometime in their life compared with one-fifth who responded to the same question seven years earlier
One of Many: The Power of Publication in the Human Rights Regime
Get PDFOn September 19, 2011, the High Court of Tanzania found Ghati Mwita guilty of murder for a February 4, 2008 homicide, sentencing her to hang pursuant to Tanzania’s mandatory death sentence. The domestic Court of Appeal sitting at Mwanza dismissed Mwita’s appeal on March 11, 2013 and rejected her application for review on that decision on March 19, 2015. Mwita then brought the case to the African Court of Human Rights (the Court) alleging that the conviction and sentencing procedures violated her fundamental rights under the Banjul Charter (the Charter)
Data Localization and Government Access to Data Stored Abroad: Discussion Paper 2
Get PDFThe Centre for Information Policy Leadership (CIPL) and Tech, Law & Security Program (TLS) have been collaborating on a project regarding data localization policies. As data localization is increasingly gaining traction, we seek to understand the different dimensions of the impacts and effectiveness of these policies. As part of this collaboration—CIPL published a paper on the “real life” business, societal, and consumer impacts of data localization policies and TLS published the present paper on whether data localization measures are legally effective in achieving one of their main ostensible purposes, i.e., to prevent foreign government access to data