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Shellfish Contamination: Reducing the Necessity for Scientific Evidence in Natural Resource Damages Under the Comprehensive Environmental Response, Compensation, and Liability Act
Full text linkIt is indisputable that shellfish contamination creates a negative impact on the economy, poses a serious risk to human health, and has a harmful effect on the fragile coastal ecosystems. However, the litigation designed to redress the harmful effects of shellfish contamination produces uncounted difficulties. Although a general public policy of preventing pollution has leg Congress to enact and revise CERCLA, the application of such a statute has proven to be uncertain due to the enormous amount of discretion given to the trial courts in deciding admissibility of scientific evidence and testimony of experts. A CERLA natural resource damage action designed to remedy shellfish contamination is the ultimate example of the awkward partnership of law and science, requiring a fact finder to base a legal conclusion on scientific uncertainties. Unfortunately, a causation standard that requires the natural resource trustee to provide a causal connection between the release and the injuries to natural resources, instead of the strict liability standard used in remediation actions, hinders the ultimate objective of returning a clean environment to the public
A Critique of the Second Circuit’s Analysis in Nicholas v. Goord
Full text linkThe Case Note proceeds as follows. Part I traces the historical and procedural facts underlying <em>Nicholas</em>. Part II describes the legal backdrop against which the United States Court of Appeals for the Second Circuit decided the case. Part III steps through the Second Circuit decided the case. Part III steps through the Second Circuit’s majority opinion, and Part IV critiques the opinion. Part V concludes the Case Note by discussing the ramifications of <em>Nicholas</em> for future DNA-indexing cases
Detention Status Review Process in Transnational Armed Conflict: Al Maquleh v. Gates, and the Parwan Detention Facility
Full text linkThis article will first set out a brief history and description of the airfield at Bagram and the detention facilities there. Second, it will explore the standards under international law and the implement ation of national regulations by which the detention status of individuals detained by U.S. military forces is determined, when such individuals may be released from detention, and the significance of the evolving concept of transnational armed conflict to these determinations. Third, it will review the U.S. Supreme Court‘s decision in Boumediene, explore the Court‘s analysis in reaching its decision, and identify what the Court found to be the most important factors in terms of applying its analysis to these types of detainee cases. The fourth part of the article will do the same for the D.C. District Court‘s decision in al Maqaleh, and will specifically note where the decision appears to misapply the Boumediene analysis and to find facts not in keeping with the actual situation of the Parwan Detention Facility. Fifth, this article will review the D.C. Circuit Court‘s formulation of the Boumediene analysis in the same fashion. Sixth, this article will describe the new status determination procedures in detail and explain why they are sufficient to obviate the need for the extension of the Suspension Clause to the Parwan Detention Facility. Finally, were the Suspension Clause deemed applicable to the Parwan Detention Facility, this article will explain why these procedures would be an adequate substitute for habeas corpus proceedings, and why they could serve as an adequate model for current and future U.S. military detention operations outside the U.S. in cases of transnational armed conflict between the U.S. and non-state actors
Wage War: Backpay Under the Hoffman Decision
Full text linkThis Article discusses the effect of the Hoffman Plastic Compounds decision on backpay as a remedy for illegal immigrants who sue their employers for lost wages. When Congress passed the Immigration Reform and Control Act of 1986 (“IRCA”), it believed it struck at the heart of illegal immigration: the search for employment in the United States. However, the IRCA did not accomplish its stated purpose. In 2002, the Supreme Court ruled that lost wages and backpay were not available as remedies to an employee who obtained a job through IRCA violation and later tried to sue his/her employer. The decision and its progeny left a complicated trail of splits in circuits. This Article explores the implications of Hoffman as it relates to awards of backpay to unauthorized workers
The Law of the Groves: Whittling Away at the Legal Mysteries in the Prosecution of the Groveland Boys
Full text linkThis Article tells the legal story of one of the South’s most infamous trials – the Groveland Boys prosecution in central Florida. Called “Florida’s Little Scottsboro,” the Groveland case garnered international attention in 1949 when four young black men were accused of the gang rape of a white woman in the orange groves north of Orlando. Several days of rioting, Ku Klux Klan activity, three murders, two trials, and three death penalty verdicts followed, in what became the most infamous trial in Florida history. The appeals of the trial reached the United States Supreme Court, with the NAACP’s Thurgood Marshall serving as lead defense counsel in the re-trial of the case. The case reads like a Hollywood movie, but with the underpinnings of a classic 20th century southern courtroom drama. This Article looks not only at the history of the Groveland prosecutions, but undertakes a legal analysis of the trial court decisions made by the trial judge. While the historiographical narrative of the Groveland trials is one of racism and a “legal lynching,” many of the legal decisions made by the trial court were, in fact, surprisingly consistent with legal precedent of the time. Nevertheless, the tragic outcome of the Groveland case inflicted a permanent scar on the reputation of the Florida criminal justice system
Too Clever by Half: Commanding the Nonuse of State Authority to Regulate Health Benefits in the ACA
Full text linkPrior to the enactment of the Patient Protection and Affordable Care Act (ACA), state legislatures routinely passed laws requiring health insurance carriers to cover certain health care services or providers. At the behest of the insurance industry, Congress attempted to use the health reform law as a vehicle to reign in state-specific “mandated benefit” laws. That being said, the ACA does not prevent states from enacting mandated benefit laws; in fact, the statute expressly permits states to enact such laws. Instead, Congress created a significant barrier to continued state-specific regulation of health insurance benefits. Specifically, 42 U.S.C. § 18031(d)(3)(B)(ii) (Section 1311(d)(3)(B)(ii) of the Act) requires states to “defray” the cost of any mandated benefit that exceeds the federally defined “essential health benefits” (EHB) package. In other words, were a state to enact a mandated benefit law that requires coverage for a benefit or service not included in the EHB package, the state would be legally obligated to appropriate state general revenue to either the individual subscribers or health plans to cover the cost of that benefit. In an apparent attempt to forestall state level health insurance regulation, Congress exacted a financial penalty from states for performing their essential role as the primary regulator of the insurance industry. This article will explore the constitutional implications of this ACA innovation
From Nucleotides to Nuanced Law: The Value of an Incremental Approach to Experimentation in State-Level Genetic Anti-Discrimination Legislation
Full text linkA person’s genetic information tells a detailed story of what someone looks like, who her relatives are, and even what illnesses she may develop. This information, as enlightening as it may be, can be especially damaging when utilized in a discriminatory way. This Note explores how the protections under the Genetic Non Discrimination Act of 2008 will no longer be sufficient for protecting individuals from genetic discrimination as the use of genetic information becomes more commonplace. The questions become: Where do we start? How and where should protections that extend to circumstances not covered by GINA be created in a way that results in comprehensive protections against genetic discrimination? This Note proposes that an effective way to achieve comprehensive protection is through incremental change in genetic anti-discrimination law at the state level before legislative change is attempted at the federal level. It argues that experimentation in the laws at the state level will allow for thorough and meaningful protections by allowing the concerns regarding genetic discrimination in the individual states to catalyze their legislative responses and will allow the states to learn from other states in determining effective paths for its own genetic non-discrimination legislation. Finally, this Note will explore potential legal frameworks that states could use as a model for genetic anti-discrimination legislation
Taking the Rule of Law Seriously
Full text linkAmerican legal scholars and jurists have given the rule of law their sustained attention, and the international community has treated it as an important measure of societal well-being. But still the rule of law is not taken seriously. For one thing, little effort has been made to craft a definition of the rule of law that is actually useful. And even when legal scholarship does try at empiricism that could illuminate the vitality of our rule of law, it generally starts from the wrong hypotheses and uses the wrong methods. It focuses on how to achieve “access to justice” and privileges quantitative approaches and the supposed “gold standard” of the randomized controlled trial over the qualitative assessment that is necessary to hold ourselves accountable for the rule of law. However, it is nonetheless possible to derive a workable, consensus definition of the rule of law from the varied and elaborate concepts offered by legal scholars and jurists, which would provide a metric that could be used as the basis for more directly relevant research. Further, some of the research that has already been done about what goes on in our courtrooms does suggest what work evaluating the extent to which we are achieving the rule of law would look like. Such research must be done if we intend to ensure a fundamentally important mechanism for achieving many of our most cherished values, including equal treatment and social justice. We have to take the rule of law seriously if we intend to uphold those values
Tradition and Function in the Autos-da-fé of the Goa Inquisition
Full text linkABSTRACT: The decision to establish a branch of the Inquisition in Goa created a unique reality in the Portuguese empire: that of having an inquisitorial tribunal exerting jurisdiction over a majority of people who had recently converted to Catholicism in an entirely colonial setting. This tribunal operated within a society marked by efforts to convert and eradicate the visible signs of gentilidade, that is, the cultural, ritual, and material expressions of the world of the “gentiles.” The aim of this article is to analyze the practices of carrying out autos-da-fé in Goa that were affected by a series of features specific to the Estado da Índia. First, we address how the social-religious landscape of the Estado da Índia’s population led to changes in the Goa Inquisition’s attitudes toward religious offenses, which, in turn, generated a need to find alternative discourses for the legitimacy of the court’s own function—namely, in the auto-da-fé sermons. We then consider the variables of time and space in the celebration of these ceremonies and the challenges of implementing Portuguese parameters in Goa. Finally, we explore two of the main moments in this public ritual: first, the procession, which became a space for the promotion of secondary sectors of colonial society, and then the auto-da-fé itself, which had to balance the exaltation of inquisitorial action while recognizing the importance of the two main representatives of the Estado da Índia, the viceroy and the archbishop.
KEYWORDS: auto-da-fé; Goa Inquisition; idolatry; Judaism
RESUMO: A decisão de estabelecer um ramo da Inquisição em Goa criou uma realidade única no império português: a de ter um tribunal inquisitorial a exercer jurisdição sobre uma maioria de pessoas recentemente convertidas ao catolicismo num ambiente inteiramente colonial. Este tribunal funcionava numa sociedade marcada pelo esforço de conversão e erradicação dos sinais visíveis da “gentilidade”, isto é, das expressões culturais, rituais e materiais do mundo dos “gentios”. O objetivo deste artigo é analisar as práticas dos autos-da-fé em Goa, marcadas por um conjunto de características próprias do Estado da Índia. Em primeiro lugar, abordaremos a forma como o panorama sócio-religioso da população do Estado da Índia conduziu a mudanças nas atitudes da Inquisição de Goa face aos delitos religiosos que, por sua vez, geraram a necessidade de encontrar discursos alternativos para a legitimação da própria função do tribunal, nomeadamente nos sermões dos autos-da-fé. Em segundo lugar, consideraremos as variáveis de tempo e espaço na celebração destas cerimónias e os desafios da implementação dos parâmetros portugueses em Goa. Por fim, abordaremos dois dos principais momentos deste ritual público: por um lado, o cortejo e a forma como se tornou um espaço de promoção de sectores secundários da sociedade colonial; por outro lado, o próprio auto-da-fé e a forma como teve de equilibrar a exaltação da ação inquisitorial com o reconhecimento da importância das duas principais individualidades do Estado da Índia, o vice-rei e o arcebispo.
PALAVRAS-CHAVE: Auto-da-fé; Inquisição de Goa; Idolatria; Judaísm
Strengths, Limitations, and Controversies of DNA Evidence
Full text linkThis article explores the benefits of DNA evidence as well as the evidentiary problems associated with DNA. Part II discusses the history, development, and the emergence of DNA in the criminal justice system. Part III analyzes the significance of DNA evidence and its impact on recent cases. Part IV describes the disadvantages of DNA evidence in terms of efficiency, risks, human error, and its impact on jurors