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The Punishment of Cruel and Unusual Conditions: Extending the Purely Objective Standard Adopted in Kingsley v. Hendrickson to Claims of Deliberate Indifference
Get PDFIn 2015, the Supreme Court in Kingsley v. Hendrickson held that a pretrial detainee claiming excessive force on the part of the state must only show that the force used was objectively unreasonable. Prior to the adoption of the purely objective standard, many courts around the country were analyzing such cases through a subjective standard to determine whether the officers subjectively knew that the force used against a pretrial detainee was unreasonable. The absence of this objective standard essentially allowed state officials to use excessive force against pretrial detainees without violating an individual’s Constitutional rights. The Supreme Court reasoned that since it has been well established that pretrial detainees cannot be subjected to any form of punishment because they have not yet been convicted of a crime, the use of the purely objective standard was the proper standard. Currently, the Second, Sixth, Seventh, and Ninth Circuits apply Kingsley’s objective standard to inadequate care claims brought by pretrial detainees, however, the Fifth, Eighth, Tenth, and Eleventh Circuits have declined to extend this standard to such claims. This Note analyzes the Kingsley decision and places a heavy emphasis on the rationale behind the purely objective standard. This Note also analyzes the reasoning behind each circuit’s decision to either extend or decline to extend the Kingsley standard to claims of inadequate care and deliberate indifference. While this Note argues that the creation of certain conditions such as inadequate care or deliberate indifference is a form of punishment, it is sensitive to the possibility that the Kingsley decision could be put in jeopardy if the Supreme Court decides to resolve this circuit split. Given that the Kingsley decision was a 5-4 decision and that the current conservative majority is unafraid to disrupt precedent, the Kingsley standard could potentially be pulled out from underneath the incarceration system. However, the Court has repeatedly denied certiorari on cases that center around extending the Kingsley standard so it is possible that this split may never be resolved which may be for the best
Interpreting Religious Doctrine: The Third Rail that Wags the Dog in Religion Clause Jurisprudence
Get PDFThis Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely on both constitutional and often— perhaps more centrally—policy concerns over the competence and prudence of judicial adjudication of religious questions. Moreover, scholars have documented the continued expansion of the Court’s approach, pursuant to which, like the third rail, the interpretation of religious doctrine is viewed as posing a danger to the judicial system; as such, judges should not only steer clear of these questions but should remain far away. Finally, the image of a third rail conveys the notion that, alongside and intertwined with doctrinal Free Exercise and Establishment Clause decision-making, the hands-off approach constitutes a third basic element of contemporary Religion Clause jurisprudence.
Second, likewise as a descriptive matter, characterizing the hands-off approach as the third rail stands for the proposition that the Court’s abiding and increasing reluctance as well as refusal to interpret religious doctrine has developed alongside the other two primary components of the Court’s Religion Clause jurisprudence. Instead, the hands-off approach arguably appears to be driving many of the Court’s decisions in Free Exercise and Establishment Clause cases in a number of meaningful ways. Although not as well-documented as other descriptive aspects of the Court’s approach, close analysis of key elements from modern Religion Clause case law and legislation points to the outsized role the hands-off approach has played in this regard as well.
Third, taking the analysis one step further, as a normative matter, the implied reference to the hands-off approach as “the tail that wags the dog” reflects the contention that the Court’s approach not only drives important areas of Religion Clause jurisprudence, but that it has had unnecessary and problematic—if not detrimental—effects on the Court’s decisions. Specifically, in several areas, close adherence to an expansive hands-off approach has arguably had a negative impact on both the Court’s reasoning and the outcome in important cases. Thus, the hands-off approach stands as the tail vis-à-vis broader concepts and concerns underlying Religion Clause jurisprudence.
Part I of this Article surveys the application and expansion of the hands-off approach in the context of cases revolving around the Free Exercise Clause, the Religious Freedom Restoration Act (“RFRA”), and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). In some instances, a deferential hands-off approach produces overly broad protections of free exercise rights at the expense of valid, counterbalancing governmental and societal interests. Conversely, in other cases, the hands-off approach may result in overly restrictive limits on the scope of the free exercise of religion.
Part II turns to cases of intrachurch disputes. These cases suggest that an overly expansive hands-off approach often works to maintain the status quo, thereby protecting the interests of the party in power while disregarding the concerns of a vulnerable party asserting arguably meritorious claims. This Part also explores the impact of a deferential hands-off approach on Establishment Clause cases, in which the failure or refusal to evaluate and distinguish the religious nature of different forms of religious symbols or activities may too narrowly or, alternatively, too broadly limit governmental conduct.
Accordingly, Part III examines and evaluates common justifications for broad judicial deference to adherents’ characterizations of their religious practices and beliefs. This Part raises questions about whether the justifications are convincing on their own terms and whether they outweigh the negative results that the hands-off approach often produces. Finally, having found that the problematic nature and consequences of an expansively deferential hands-off approach likely outweigh its ostensible justifications, this Part explores potential alternatives to various elements of the current articulation and application of the hands-off approach. The Article concludes with the observation that the other two basic components of the Court’s Religion Clause jurisprudence— the interpretation and application of the Free Exercise Clause and the Establishment Clause—are currently undergoing fundamental transitions and transformations to a degree unseen in recent memory. At this moment, perhaps the third rail of Religion Clause jurisprudence—interpreting legal doctrine— should no longer remain untouchable. Instead, the Court’s expansive and deferential hands-off approach should likewise undergo a transformation of its own
Zoning and the Bar Exam
Get PDFThe National Conference of Bar Examiners (NCBE), which develops American bar examinations, recently released a proposed outline of the subjects to be tested on future examinations. NCBE\u27s property outline omits zoning law. This article argues that the NCBE\u27s proposal is unwise, because zoning law is more frequently litigated than many subjects included in the NCBE outline
The Legacy of Brown v. Board of Education: Achieving Student Body Diversity in All Levels of Education
Get PDFThis Article addresses the legal standard by which school admissions programs may be judged and validated as school districts struggle to achieve student body diversity. As the Supreme Court recognized in its seminal decision, Brown v. Board of Education, education “is the very foundation of good citizenship.” Twenty years after that case was decided, Thurgood Marshall, who had argued that separate was not equal in the Brown case, observed as a Justice of the Court that “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Because achieving student body diversity cannot be separated from a consideration of the race of the students, school admission programs face a constitutional challenge, whether they consider race as part of its selection process or do not consider the racial composition of their student bodies and are, therefore, not diverse. Taking center stage in this struggle is Thomas Jefferson High School for Science and Technology, a highly selective magnet school that was recently sued by a coalition of parents of Asian American students challenging changes it made to its admissions policy. A federal district court has invalidated the program on equal protection grounds, and an appeal of that decision is currently pending before the United States Court of Appeals for the Fourth Circuit. Although the Supreme Court has twice upheld race-conscious plans used by colleges and universities, there is some question whether the Court will apply this precedent to elementary, middle, or high school plans or whether the Court will continue to allow race to be considered in any admissions program at any level of education. In light of the importance of diversity in this nation’s classrooms, which the Supreme Court has repeatedly noted, the principles established by the Supreme Court upholding race-conscious admissions plans should continue to apply and should not be limited to colleges and universities but should apply with equal force to elementary, middle, and high school admissions programs. If these principles are not applied to these programs or if the Supreme Court invalidates any consideration of race in admissions programs at all levels of education, then the late Justice Ginsburg’s warning will come to pass: Schools will not stop considering every characteristic of applicants, including race, to achieve student body diversity but will instead resort to “winks, nods, and disguises” to achieve that goal. If the principles are applied, and schools are permitted to consider race as one factor of many for each applicant, then the Brown v. Board of Education legacy will endure, and schools can work openly to achieve diversity at all levels of education
A Named Inventor of a Patent Should Be Expanded to Include Artificial Intelligence
Get PDFWhy should patent inventors be limited to only natural persons under the current United States patent law? In fact, the present US patent law should be expanded to allow an Artificial Intelligence (“AI”) to be a named inventor of a patent. This would incentivize patent owners to use AI to produce more inventions that would benefit the public. There is no negative impact to expand the current US patent law. Many scholars, law professors, and practitioners believe that the patent law (or intellectual property law in general) is outdated due to the massive growth of modern technology. This Note argues that Congress should amend the patent law to permit an AI to be a named inventor or alternatively the Supreme Court should expand the interpretation of the patent law to encompass AI within the meaning of an inventor. Accordingly, such an expansion will promote the intent of article I, section 8, clause 8 of the United States Constitution
New Scholarship on Streets
Get PDFAn article discussing numerous recent articles in legal journals discussing the rise in automobile-related death and injury in the United States
Sanitation: Reducing the Administrative State’s Control over Public Health
Get PDFOn April 18, 2022, in Health Freedom Defense Fund, Inc. v. Biden, United States District Judge Kathryn Kimball Mizelle vacated the mask mandate issued by the Centers for Disease Control and Prevention. Following a framework laid out in other decisions restricting CDC actions in response to COVID-19, the court found that the agency lacked statutory authority to protect the public from the virus by requiring mask wearing during travel and at transit hubs because Congress did not intend such a broad grant of power. Countering decades of public health jurisprudence, the federal district court failed to defer to experts and prioritized individual liberties over population health. When considered alongside the Supreme Court’s recent focus on the major questions doctrine, this lower court’s redefinition of the term “sanitation” away from the meaning it has long held under federal and state jurisprudence and in the public health field is a big step towards reducing the administrative state’s control over public health. While not binding on the states, this decision creates a path for state courts to follow when restricting actions taken by public health agencies, allowing judicially-mandated individualism to spread and courts to gain power as they narrow the boundaries of administrative discretion