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Prosecuting the Material Support of Terrorism: Federal Courts, Military Commissions, or Both?
Full text linkThis note argues that given the recent changes in the 2009 MCA the overall scheme for prosecuting material support of terrorism offenses is satisfactory (i.e., material support crimes should remain under the jurisdiction of both forums), but that the jurisdiction of military commissions over material support offenses should be limited to those providing material support to further specific acts of terrorism (as opposed to generalized support) and to those giving aid to terrorists or foreign terrorist organizations (hereinafter ―FTOs) in active theaters of war
Cat, Cause, and Kant
Full text linkThese are precarious times in which to launch a new law school and a new law review. Yet here we are. The University of Massachusetts is now in its first year of operation with provisional ABA accreditation. This text is a foreword to the first general-interest issue of the University of Massachusetts Law Review. Now marks an appropriate time to take stock of what these institutions mean to accomplish in our unsettled legal world
Protecting the Innocent with a Premium for Child Safety Regulations
Full text linkFederal agencies regulate many products and activities that impact the safety of children. Agencies should put a premium on saving the lives of children when analyzing the costs and benefits of proposed regulations. This note uses original evidence from the infant car seat market to determine that a child-specific benefit measure should be one and a half to two times that of an adult. A child premium will encourage more regulations that protect the safety of our society\u27s most precious and innocent members
Back to Blood: The Sociopolitics and Law of Compulsory DNA Testing of Refugees
Full text linkSince October 2012, certain family members of refugees seeking reunification through the United States Refugee Admissions Priority Three program must undergo DNA testing to prove they are genetically related. The putative purposes of the policy include fraud prevention, enhanced national security, and greater efficiency in refugee claims processing. Upon close inspection, however, the new policy generates significant sociopolitical and legal concerns. The notion of what constitutes a family is significantly narrowed. Required DNA testing may violate domestic laws and international human rights instruments regarding voluntary informed consent, privacy, and anti-discrimination. Traditional legal solutions insufficiently remedy these concerns and cannot prevent the collective march towards an intractable risk society that views the “Other” as a potential fraud. Alternative strategies to mitigate the impact of the new policy are recommended. Such strategies can allow for a more nuanced understanding of family and a firmer understanding of the inherent but also uncertain risks of DNA technology in the immigration and refugee context
The Legal Status of Charter Schools in State Statutory Law
Full text linkGiven the recent increase in charter schools as an alternative to the traditional public education system, this Article explores the legal status and position of charter schools. Charter schools exhibit many characteristics of private schools, particularly in terms of management, but also retain many public school features. Thus, this Article explores areas of the law where charter schools were either classified as public or private in terms of state statutes or regulations, discussing recent and some pending litigation. First, this Article discusses whether charter schools, charter school boards and officials, or educational management organizations which manage charter schools are entitled to governmental immunity, thus classifying them as public entities. Second, this Article examines the interplay between charter schools, their boards, and their management organizations and whether they are subject to public accountability laws, as their public school counterparts are. Third, this Article surveys whether charter schools are subject to state prevailing wage statutes. Fourth, this Article examines whether charter schools are required to follow the same student expulsion requirements as public schools. This Article proceeds to tally the results of this litigation, discussing both whether charter schools are subject to the same laws and regulations as public schools in their districts and whether charter schools and their officials are public entities under the law, and thus subject to the same rules governing the action of public officials. This Article concludes that often times, this distinction is not clear in state statutory requirements as they currently stand, and that legislators should take care in drafting charter school legislation, so that charter schools have a clear set of rules to follow and courts have a clear set of rules to apply in litigation. The status quo is particularly troubling with regard to student disciplinary issues and educational management organizations’ fiduciary obligations, and this Article urges legislators to address these issues
Gun Control to Major Tom: An Analysis of Failed Gun Regulations and the Terrorist Watchlist
Full text linkAs a division of the Federal Bureau of Investigation’s National Security Branch, the Terrorist Screening Center maintains the Terrorist Watchlist, a central database for identifying individuals known or suspected to engage in terrorism or terrorist activities. Subsumed under the Terrorist Watchlist is the No Fly List, which prohibits individuals from boarding commercial aircrafts in and out of the United States. Placement on either list presumes named individuals as a potential threat to U.S. national security, yet there is no restriction preventing them from legally purchasing firearms. Following a mass shooting at an Orlando nightclub in June of 2016, which was perpetrated by an individual recently removed from the Terrorist Watchlist, the Senate proposed two gun control measures specifically aimed at preventing individuals on the Terrorist Watchlist from purchasing firearms. Both proposals were rejected. This article explores the constitutional and procedural concerns that led the Senate’s rejection of both proposals, and concludes by introducing gun control regulation tailored to address those concerns
Absolute Freedom of Opinion and Sentiment on All Subjects: John Stuart Mill’s Enduring (and Ever-Growing) Influence on the Supreme Court’s First Amendment Free Speech Jurisprudence
Full text linkA majority of Justices on the contemporary U.S. Supreme Court have increasingly adopted a largely libertarian view of the constitutional right to the freedom of expression. Indeed, on issues ranging from campaign finance to offensive speech to symbolic speech to commercial speech to online expression, the Court has struck down many laws on free speech grounds. Much of the reasoning in these cases mirrors John Stuart Mill’s arguments in On Liberty. This is not new, as Mill’s position on free speech has been advocated by some members of the Court for a century. However, the advocacy of Mill’s position has grown over time, to the point now where it is the dominant view expressed by the Justices in free speech cases. Even where the majority has in recent years found limits to free speech rights (including in cases involving student speech, public employee speech, and speech related to foreign terrorist organizations), several Justices have advocated a Millian framework and arguably followed the exceptions that Mill outlined when advocating the Harm Principle for free speech. Through textual analysis of illustrative cases we demonstrate the growth of Mill’s influence on the Supreme Court and where the Justices have deviated from what Mill advocated
Dalliances, Defenses, and Due Process: Prosecuting Sexual Harassment in the Me Too Era
Full text linkThis Article will likewise examine the prosecution of sexual harassment in what has come to be called the Me Too Era, not only by analyzing the constitutional application and limitations of due process, the promulgation of Title IX policies4 on campuses and their effect on public students and employees, and the limited remedies available to workers in private entities, but to suggest as well ways by which academics can move their message beyond theory and into pragmatic solutions with greater impact
Cartoon Contracts and the Proactive Visualization of Law
Full text linkContracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand. There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential narrative have been used to communicate contract terms to all parties, but particularly to contractors who are illiterate or lessthan-fully literate in the language of the instrument. The goal of this Article is to apply the lens of visual legal rhetoric and visual literacy to the current visualization movement in Proactive Law and Legal Design in their efforts to promote visual, non-verbal communication in contracts through cartoon, comic book, and highly pictorial legal instruments. The lens will be applied to evaluate and critique five aspects of proactive visual legal instruments: • Immediate Visual Context • Immediate Verbal Context • Visual Cultural Context • Mise en Scène and Arrangement • Visual Rhetoric, Ethics and Professionalism This Article analyzes whether highly visual contracts and legal instruments fulfill the potential for greater access to and understanding of contract terms particularly with audiences whose language skills and cultural experience might make the comprehension and acceptance of purely verbal contracts more difficult. When visuals can overcome barriers in communication that words alone cannot, contracts and other legal instruments can be made more universal in their application, interpretation, performance, and enforcement