16885 research outputs found
Sort by
The Importance of Viewing Property as a System
Get PDFCan--or should--the American property system adapt to curb the excesses inherent in the dominant form of capitalism? Those extolling the virtues of privatization of resources would likely answer in the negative. Such a response would ignore the core functions and infrastructure of the American institution of property. This Article discusses the structure of property that enables property law to evolve over time, reacting to changing conditions, recognizing informal customs and usages, and otherwise taking into account important feedbacks. It explains how property provides an ordering system of concepts and principles that define and govern relations between a society and its resources at an individual and collective level. As an ordering system, property performs the important functions of allocating, distributing, and managing interests in the society\u27s resources according to accepted norms and principles. The in rem nature of property rights gives holders their power over third parties, while constitutional provisions protect property owners from government overreach. Basic operating principles and norms then guide the decision-making of the property owners--the gatekeepers--in ways that again reflect accepted norms. But when those norms and principles ignore physical realities, when they clash with other values fundamental to the political structure of the society, when they conflict with modern scientific truths and understandings, it is time for the property system to reevaluate some of its core operating principles and guiding norms. Such a reform effort, however, requires a deeper understanding of the importance of viewing property as a system
Trauma and Memory in the Prosecution of Sexual Assault
Get PDFPart I of this article traces the history of the recovered memory movement in the criminal prosecution of sexual assault, discussing some prominent cases and their consequences for wrongly convicted defendants. Part II asks why the criminal law was so vulnerable to claims of sexual assault, and other violent crimes, that were often wildly improbable on their face. The article concludes that the structure of recovered memory theory had the effect of disabling checks in the criminal process which are designed to prevent unjust convictions. Part III applies that conclusion to the theory of Trauma-informed Investigation (TII) and the Neurobiology of Trauma . Although the law itself recovered from the recovered memory craze, it remains susceptible to manipulation by theories, such as TII, which unite these three claims: (1) that memory of trauma is importantly different from ordinary memory; (2) that the experience of trauma chases memory from consciousness, but (3) that memory for traumatic events can be accurately recovered using techniques that (intentionally or not) require the circumvention of the normal, fact-based investigation and prosecution of a criminal cases. In addition, and in striking parallel to the scientific debate over repression and recovered memories in the 1980s and 1990s, the science on these questions is far from settled. Ultimately, the article questions the need to import psychological conceptions of trauma and traumatic memory into the task of investigating and processing cases of sexual assault. The history demonstrates that cherry-picking controversial scientific findings and deploying them as the basis for criminal investigation and charges undermines the law\u27s core mission of discovering the truth behind criminal allegations, ensuring that the guilty are convicted and punished, but also ensuring that the innocent are protected from false or wrongful allegations
The Forum-Defendant Rule, The Mischief Rule, and Snap Removal
Get PDFSamuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding that it is consistent with the unambiguous text of 28 U.S.C. § 1441(b)(2) and does not produce an absurd result, despite contravening congressional intent that such cases remain in statecourt. Bray’s reconstruction of the mischief rule offers a textual solution—by focusing on the mischief Congress targeted with the “properly served” language of § 1441(b)(2), courts can broadly interpret existing statutory text to prohibit snap removal as a clever evasion of the forum-defendant rule
Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment
Get PDFTo become President of the United States, you must be constitutionally qualified. You must be thirty-five years old, a natural born citizen, and fourteen years a resident within the United States. Neither Congress nor any state can set this threshold higher; the same is true for congresspeople. But since it was last successfully invoked in 1917, most have forgotten the other qualifier—for officers at both the state and federal levels—from Section 3 of the Fourteenth Amendment. Those who have violated their oath to uphold our Constitution can be disqualified from holding any public office under the United States or any state. This Article reconstructs this lost qualification and develops a framework for its twenty-first-century application by the states, the federal courts, and Congress.
Part I uses sources from and contemporary to the drafting of the Fourteenth Amendment alongside recent secondary sources to determine what Section 3 means. Part II then develops a test that can be applied in judging a Section 3 case. Part III briefly explores mechanisms through which the qualification can be enforced. Part IV reviews and summarizes some surviving use-cases so that decision makers can easily compare modern transgressions to precedent. And finally, Part V adopts the analysis from Parts I and II and scrutinizes a hypothetical person who may be barred by Section 3. The Article then concludes
Board Gender Diversity: a Path to Achieving Substantive Equality in the United States
Get PDFWhile the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has stirred much controversy for requiring at least one woman to be on the boards of corporations headquartered in the state by 2020. Based on our analysis, the California bill and other similar legislative efforts will fail without parallel constitutional action and cultural change in the United States.
We begin by examining the individual, institutional, and cultural reasons why the United States lags so far behind the rest of the industrialized world. We then discuss recent activism by powerful institutions such as Nasdaq and Goldman Sachs that may signify broader cultural change and receptiveness to positive action. Next, we conduct an analysis of the legislative, cultural, and constitutional factors that have helped the EU succeed in increasing board diversity. We conclude by offering a normative solution that can pave the way to achieving gender equality in the United States. Learning from the EU model, the United States must let go of the Equal Rights Amendment and adopt a Substantive Equality Amendment to the Constitution requiring positive action to facilitate laws enabling gender equality. This solution will have broad cultural impact outside of the board context and will help change the lived experiences and outcomes for women in the United States for generations to come. It will change the course of history
Regulating Armed Private Militia Gatherings: a Constitutional State-Level Proposal to Promote Public Safety in a Post-Heller World
Get PDF“Yesterday, in my view, was one of the darkest days in the history of our nation.” President Joseph R. Biden spoke these words following the January 6, 2021 riots at the U.S. Capitol Building that left five people, including a police officer, dead. The mob that stormed the Capitol sought to prevent Congress from certifying then-President-elect Biden’s Electoral College victory. In the weeks following the riot, investigators began arresting rioters associated with extremist right-wing militia groups, such as the Oath Keepers and Three Percenters. While January 6, 2021, can accurately be labeled a dark day in American history, the events that unfolded did not necessarily surprise those familiar with the activity of extremist private militia groups in the preceding months.
On October 8, 2020, federal agents arrested seven members of the Wolverine Watchmen militia who plotted to kidnap Michigan Governor Gretchen Whitmer. One week earlier, in front of a national audience, then-President Donald Trump told the Proud Boys, a far-right extremist group, to “stand back and stand by.” In August 2020, seventeen-year-old Kyle Rittenhouse killed two protestors in Kenosha, Wisconsin, where armed militia groups sought to assume security functions during protests for racial justice. Although these incidents differ, they all highlight a troubling reality: the increased presence of armed private militia groups in public spaces.
While elements of private militias have existed since America’s colonial period, the modern militia movement traces its roots to the 1990s. The movement, which is generally “anti-government and radically pro-Second Amendment,” quieted in the early 2000s, but has undergone a resurgence in recent years. Groups vary greatly in ideology and activity, but three recent trends have emerged. First, many groups have shifted from a strict anti-government stance to open support for right-wing politicians. Second, militia members have been emboldened by tacit support from politicians and law enforcement, as demonstrated by the Proud Boys’ positive reaction to then-President Trump’s comments. Third, armed groups recently have appeared more regularly at peaceful protests, particularly those dedicated to racial justice. As one analyst noted, the militia movement has “normaliz[ed] the idea that vigilante justice is not just justifiable but is necessary.”
As demonstrated in Kenosha, as well as in Charlottesville, Virginia, three years earlier, the presence of armed private militias in public spaces can have deadly consequences. Of course, those who go so far as to enact violence, fire a weapon, or take a life can be prosecuted under various laws. However, all fifty states have at least one additional statutory or constitutional provision that they could use to regulate armed private militias. For example, some states criminalize paramilitary activity, such as instructing others to use firearms or explosives knowing the weapons “will be unlawfully used in furtherance of a civil disorder.” Other laws regulate gatherings of armed militia groups. States have failed to effectively use these provisions, likely due in part to a lack of precedent, a lack of political will, and the limited penalties associated with a conviction.
Private militias have contested that these anti-militia laws are unconstitutional. It is likely not merely coincidental that the resurgence of the private militia movement has overlapped with the recent increase in Second Amendment jurisprudence. In 2008, in the foundational case District of Columbia v. Heller, the Supreme Court held that the Second Amendment protects an individual right to possess a firearm for lawful purposes, such as protection in the home. Two years later, the Court incorporated the Second Amendment right to bear arms to apply its protection to the states.
Nevertheless, over the past decade, lower courts have repeatedly upheld gun safety restrictions as constitutional public safety measures. In fact, Virginia utilized its anti-militia laws in a successful suit that banned some groups from armed public gatherings in Charlottesville following 2017’s violent “Unite the Right” rally. While laws preventing private militias from carrying firearms in public may raise Second Amendment concerns, their application is consistent with the courts’ understanding of the Amendment’s outer limits.
This Note argues that state laws that regulate private militia groups are constitutional and not violative of the Second Amendment. To supplement this argument, this Note proposes that all states should adopt the same standard to consistently regulate armed militia gatherings in public spaces. This standard, modeled on Alabama’s statute regulating unauthorized military organizations, would cover a variety of armed groups gathering at protests, rallies, and public events. Additionally, this proposed law would increase penalties for those convicted to enhance deterrence and give the law more bite. The application of this standard across all fifty states could de-escalate tensions, prevent violence, and save lives.
To begin its analysis of laws regulating armed groups, this Note must first define what constitutes a “private militia,” a term that has taken on new meaning in recent years. Part I defines the term and examines key differences between unofficial private militias and state-sanctioned forces. Part I also traces the origins of militia groups in America, from their colonial roots through the present day, exploring some of the key features animating the modern movement. Part II examines recent Second Amendment jurisprudence to analyze some of the theories that private militias draw on in arguing for their right to gather in public while armed.
Part III describes the existing provisions used to regulate armed groups and examines their constitutionality under the Second Amendment. Part IV then details this Note’s proposed standard, addressing practical challenges of implementation and responding to anticipated counterarguments. Finally, a brief conclusion summarizes this Note’s argument and reexamines the current landscape for private militia groups. States have the tools at their disposal to limit the negative influence of armed private militias. These laws are constitutional, and states can, and should, use them to protect communities
Civil Disobedience in Latter-day Saint Thought
Get PDFThe twelfth article of faith declares, “We believe in being subject to kings, presidents, rulers, and magistrates, in obeying, honoring, and sustaining the law” (A of F 1:12). On its face, this statement seems to be an unqualified acceptance of legal authority, one that would suggest that Latter-day Saints ought to shun civil disobedience. However, a closer look at Restoration scripture, teachings, and experience reveals a more complicated picture. To be sure, law-abidingness has long been central to the Saints’ identity, particularly in the twentieth and twenty-first centuries, and like the New Testament, Restoration scripture generally accepts the need to “render to Caesar the things that are Caesar’s” (Mark 12:17) and affirms the legitimacy of the “powers that be” (Rom. 13:1). However, there has never been a clear consensus among Latter-day Saint authorities on the precise extent to which the Saints owe deference to secular law. From the beginning, members of The Church of Jesus Christ of Latter-day Saints have insisted that there are limits on the duty of obedience that Latter-day Saints owe to Caesar.
This abstract has been adapted from the author\u27s introduction
Docket Selection and Judicial Responsiveness: The Use of AI in the Colombian Constitutional Court
Get PDFThis Article addresses some of the limitations of AI as a tool to preselect a long or shortlist of cases for a court at the apex of the judicial system to review. It focuses on the Colombian Constitutional Court, as an example of a court at the apex of the judicial system that has been historically responsive to claims for fundamental rights. Docket selection is an example of a classification problem using supervised learning, in which a machine groups data according to preestablished characteristics.
This Article draws from two different bodies of literature to analyze the consequences of using AI to preselect the docket of Colombia\u27s Constitutional Court. It draws from political science models of the functions of courts and the structure of the judiciary to show the importance of docket selection to provide high courts with complete information about existing conflict in a society. Secondly, it draws from critiques of AI made by philosophers of the mind and cognitive scientists to illustrate the importance of human experience in docket selection. These critiques focus on the ways human experience and our interaction with the world shape our cognitive abilities and processes, to illustrate the differences between human intelligence and AI. The Article uses that literature to show that AI can help in identifying and preselecting cases based on well-defined legal categories. The use of AI, however, can also bring more significant problems. On the one hand, AI classification can sometimes include cases that do not deserve to be selected, producing which are known as false positives. However, the use of AI may produce more difficult problems because a machine cannot help the Court identify emerging patterns of social conflict, or naturalized patterns of social interaction that have recently been perceived as problematic. In other words, it also fails to preselect cases that are worth selecting, which are known as false negatives. Moreover, during times of social and political change, courts can become unresponsive or reactionary, and the costs associated with false negatives tend to be much greater.
This Article is divided into five parts. The first part briefly surveys the relevant AI technologies and elaborates on the criticisms made by philosophers and cognitive scientists. The second part introduces a model that describes the functions of courts, highlighting that such functions vary depending on the position of a court within the structure of the judiciary and showing the importance of information flows within the judiciary for the operation of a well-functioning legal system. The third part describes the role played by the Colombian Constitutional Court and how its responsiveness promoted an increase in fundamental rights litigation. The fourth part describes the current docket selection mechanism and how AI is starting to be used by the Court. The fourth part analyzes the consequences of using AI in preselecting the docket. Finally, the conclusion highlights some of the theoretical implications and makes recommendations for more sensitive ways in which AI can be used to promote greater efficiency and legal certainty.
This abstract has been adapted from the author\u27s introduction
If You Think AI Won\u27t Eclipse Humanity, You\u27re Probably Just a Human
Get PDFBuilding machines that can replicate human thinking and behavior has fascinated people for hundreds of years. Stories about robots date from ancient history through da Vinci to the present. Whether designed to save labor or lives, to provide companionship or protection, loyal, capable, productive machines are a dream of humanity.
The modern manifestation of this interest in using human-like technology to advance social interests is artificial intelligence (AI). This is a paper about what that interest in AI means and how it might develop in the world of national security.
This abstract has been adapted from the author\u27s introduction
