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Brotherhood or Bloodshed?: The Deprivation of Human Rights Through Hazing Rituals
No full textHazing has claimed the lives of hundreds of victims and is inflicted upon thousands more each year. Governments worldwide have worked to create laws prohibiting hazing and punishing those who inflict abuse upon others. But they have not worked hard enough.This article explores the human rights violations normalized through the continued, widespread practice of hazing. It first dives into the history of hazing practices within the United States, Portugal, and Thailand, focusing on hazing occurring within universities and affiliated organizations. Next, through an examination of national and international laws, this article criticizes the lack of each respective government’s action to combat hazing practices and protect their citizens’ fundamental human rights. Finally, it further theorizes why there continues to be a lack of movement within countries to fully attack hazing through legislation and procedure and comments on possible solutions to the global issue of hazing
MMU: 04/08/24–04/14/24
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The Unconstitutional Conditions Vacuum in Criminal Procedure
No full textFor more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine functions as a selective shield that offers no support for certain rightsholders.
We argue that the Court’s approach undermines vital rights, with especially harmful consequences for people who most need judicial protection. Since individuals accused of crime are often extremely vulnerable to coercive government measures, the important safeguards offered by the unconstitutional conditions doctrine should be at their height in the criminal procedure setting. Indeed, lower federal courts and some state courts have applied the doctrine to criminal procedure issues, demonstrating the doctrine’s utility in this domain. We conclude that the Supreme Court’s aversion to leveraging the unconstitutional conditions doctrine in its criminal procedure docket rests not on a principled doctrinal distinction, but on a failure to take seriously the constitutional predicaments facing those charged with crimes. In accordance with its obligation to render equal justice under law, the Court must apply the unconstitutional conditions doctrine in this most critical area
The Rise of Counter-Terrorism and the Demise of Human Rights
No full textProfessor Fionnuala Ni Aolain, Regents Professor and Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School, will deliver the 2024 Bernstein Lecture in Comparative Law, which will address the consolidation and expansion of counter-terrorism norms and institutions since 9/11. The rise of counter-terrorism has enabled the consolidation of autocracy, sustained democratic backsliding, and undermined the capacity of civil society to function across the globe. The impact on human rights has been extensive and highly detrimental to the most vulnerable individuals and groups across the world. Drawing on Professor Ni Aolain\u27s work as United Nations Special Rapporteur on Counter-Terrorism and Human Rights since her 2017 appointment, the lecture will show the hard choices that must be made nationally and globally to reverse these trends. The Annual Bernstein Lecture in Comparative Law honors Professor Herbert L. Bernstein, who was a member of the Duke Law faculty from 1984 until his death in 2001, and the many contributions he made to Duke Law School and the legal community
AI, Algorithms, and Awful Humans
No full textA profound shift is occurring in the way many decisions are made, with machines taking greater roles in the decision-making process. Two arguments are often advanced to justify the increasing use of automation and algorithms in decisions. The “Awful Human Argument” asserts that human decision-making is often awful and that machines can decide better than humans. Another argument, the “Better Together Argument,” posits that machines can augment and improve human decision-making. These arguments exert a powerful influence on law and policy.
In this Essay, we contend that in the context of making decisions about humans, these arguments are far too optimistic. We argue that machine and human decision-making are not readily compatible, making the integration of human and machine decision-making extremely complicated.
It is wrong to view machines as deciding like humans do, except better because they are supposedly cleansed of bias. Machines decide fundamentally differently, and bias often persists. These differences are especially pronounced when decisions require a moral or value judgment or involve human lives and behavior. Making decisions about humans involves special emotional and moral considerations that algorithms are not yet prepared to make—and might never be able to make.
Automated decisions often rely too much on quantifiable data to the exclusion of qualitative data, resulting in a change to the nature of the decision itself. Whereas certain matters might be readily reducible to quantifiable data, such as the weather, human lives are far more complex. Human and machine decision-making often do not mix well. Humans often perform badly when reviewing algorithmic output. We contend that algorithmic decision-making is being relied upon too eagerly and with insufficient skepticism. For decisions about humans, there are important considerations that must be better appreciated before these decisions are delegated in whole or in part to machines
Nondelegation and the Legislative Versus Administrative Exactions Divide: Why Legislatively Imposed Exactions Do Not Require a More Searching Standard of Review
No full textAs the United States continues to grow and urbanize, local governments have tried to manage this growth to mitigate the external impacts that new developments can cause. One method by which state and local governments seek to control growth within their borders is by imposing conditions on the issuance of building permits—otherwise known as exactions. Exactions, however, face federal constitutional limits under the Takings Clause of the Fifth Amendment, which applies to state and local governments through the Fourteenth Amendment.
In Nollan v. California Coastal Commission and Dolan v. City of Tigard, the U.S. Supreme Court restricted exactions in certain situations by requiring that, prior to imposing the exaction, the government make an individualized determination that the condition has an “essential nexus” and is “roughly proportionate” to the foreseen harm from the development. The Nollan/Dolan test is primarily grounded in a fear of government overreach and coercion of property owners. The courts agree that the Nollan/Dolan test applies when a government agency, such as a zoning board, imposes an exaction on a discretionary and ad hoc basis. The U.S. Supreme Court, however, has not yet determined whether exactions that are generally imposed on property owners through a legislative action, such as an ordinance, must comply with the Nollan/Dolan test. On the one hand, a legislatively imposed exaction is like a typical land use regulation, to which the Court has granted broad deference. But on the other hand, such exactions still carry the risk of government overreach by unfairly targeting a small, politically unpopular group: developers.
This Note evaluates the debate over whether the Nollan/Dolann test should apply to legislatively imposed exactions and ultimately concludes that it should not. Legislatively imposed exactions are fundamentally different from administrative exactions because of their greater democratic legitimacy. Indeed, courts already recognize and are hardening this line between legislative and administrative actions, as evidenced by the nondelegation doctrine. Thus, the Nollan/Dolan test should not apply to legislatively imposed exactions