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Watching the Watchers: The Growing Privatization of Criminal Law Enforcement and the Need for Limits on Neighborhood Watch Associations
Full text linkOn the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida, when he spotted Trayvon Martin, a seventeen-year-old Africa-American high school student, walking through the neighborhood. Zimmerman dialed 911 and indicated that he was following "a real suspicious guy". The police dispatcher requested that Zimmerman discontinue following Martin, but he ignored the request and approached the teenager. In the resulting confrontation, Zimmerman used his legally owned semi-automatic handgun to shoot and kill Trayvon Martin. Martin, who was unarmed, had been returning from a local convenience store. George Zimmerman was charged with second-degree murder. At the time of this writing, it is unclear whether Zimmerman will be proven guilty of the offense. What is certain is that despite the fact that Zimmerman was engaged in law enforcement activities, the Fourth and Fifth Amendments that restrict police efforts in detaining, searching and interrogating suspects do not apply to neighborhood watch organizations. In many states neighborhood watch members may carry firearms and are protected from having to retreat when confronted by a suspect under "stand your ground" laws. Consequently, neighborhood watch members wield significant authority, but they lack the training and limitations to which police are subject. This article proposes statutory provisions that would limit the ability of neighborhood watch members to confront suspects, mandate training for those engaged in law enforcement activities, and expand the exclusionary rule to evidence seized illegally by private citizens engaged in law enforcement functions. In this way, legislatures would better ensure that due process guarantees are not abandoned when law enforcement activities are privatized
Toward a Less Adversarial Relationship Between Chevron and Gardner
Full text linkVeterans benefits are a creature of statute. As such, nearly every veterans benefits issue presented to the courts for resolution involves the interpretation of a statute, regulation, or sub-regulatory authority. Although veterans law has been subject to judicial review for over twenty-five years, the courts still have yet to develop a coherent doctrine regarding when to resolve ambiguity in favor of the veteran versus when to defer to the interpretations of the Department of Veterans Affairs. This Article explores three possible approaches to developing a coherent vision of how veteran friendliness and agency deference can coexist and provide more predictability in how to interpret veterans benefits laws
Race Indeed Above All: A Reply to Professors Andrea Curcio, Carol Chomsky, and Eileen Kaufman
Full text linkDan Subotnik responds to Andrea Curcio, Chomsky, and Eileen Kaufman, Testing, Diversity, and Merit: A Reply to Dan Subotnik and Others, 9 U. Mass. L. Rev. 206 (2014)
Immigration as Business Strategy: Simplifying American Immigration Law in a Global Economy
Full text linkDespite immigration law’s notorious complexity, public debate on immigration reform has historically ignored basic questions of why and how the current laws should be simplified. Instead, discussion has often focused on substantive proposals—most commonly regarding legalization and border enforcement—without reference to the impact of these proposals on the legal immigration structure. This article emphasizes that any durable immigration reform must take steps to free the immigration system from the intricacies that define it today. The article begins by overviewing the basic features of the modern global economy, their implications for immigration law, and why these implications compel an immigration system based on simple rules. Then, borrowing from the literature on business strategy and organizational design, the article applies to the current immigration system a basic three-step framework for developing simple rules. In the first step—Setting the Objective—the article argues that family reunification, the primary objective of the current system, does not adequately acknowledge the global economy in which the American immigration system operates. As economic conditions affecting the United States have evolved since fifty years ago when family reunification emerged as the cornerstone of American immigration policy, the focus of the American immigration system must be reoriented towards competing in the global economy. In the second step—Identifying a Bottleneck—the article hones in on the second and third categories of the current five-category preference system for admitting employment-based immigrants. Examining the unique obstacles and complexities facing immigration under the EB-2 and EB-3 categories, the article identifies these categories as a focal point on which any effort to simplify American immigration law should take aim at the outset. Finally, in the third step—Formulating the Rules—the article argues that from the perspective of simplicity, a provisional visa program proposed by many commentators offers a legal system that is user-created, repetitively applicable, and easily adaptable—features that are necessary for the effective practical application of simple rules. As such, provisional visas provide a structurally viable replacement for the procedures currently used to admit immigrants who fall under the EB-2 and EB-3 categories. The overarching purpose of this article is to emphasize that sustainable reform of American immigration law must not only make substantive revisions, but also initiate a process of structural simplification. The article offers a conceptual starting point for this process by applying to the current immigration system a basic business-strategy framework for developing simple rules
Aaron\u27s Law: Reactionary Legislation in the Guise of Justice
No full textThis Note argues that the proposed amendment to the Computer Fraud and Abuse Act dubbed “Aaron’s Law,” created in the wake of the prosecution and subsequent suicide of hacktivist Aaron Swartz, should not be enacted as it is overly reactionary legislation which would have unfortunate and unjust repercussions in the realm of civil litigation. This Note first describes the circumstances under which Mr. Swartz found himself prosecuted under the Computer Fraud and Abuse Act, namely his intrusion into, and downloading massive amounts of data from, large internet databases like PACER and JSTOR. This Note also explores the disputed interpretation of the CFAA phrase “exceeds authorized access” by the Circuit Courts of Appeal and according to the maxims of statutory interpretation, the particular phrase which Aaron’s Law seeks to amend. Then this Note examines Robbins v. Lower Merion School District, a case utilizing the existing language of the CFAA. Amending the language as proposed by Aaron’s Law would potentially remove a civil remedy in Robbins. This Note concludes that prosecutorial discretion should be used in cases like Aaron Swartz’s, so as to allow the CFAA to function as intended by Congress and to provide the Robbins plaintiffs, and similarly situated individuals, a meaningful remedy
Putting the Plug in the Jug: The Malady of Alcoholism and Substance Addiction in the Legal Profession and a Proposal for Reform
Full text linkTo members of the legal profession, and many of those familiar with it, the high rate of chemical dependency among practitioners is not a secret. Moreover, there is a strong correlation between chemically dependent attorneys and ethical violations across the nation. Over the past thirty years, the legal profession has generally dealt with the alarming amount of professional misconduct rooted in an attorney’s alcoholism or substance addiction by imposing discipline. With the exception of some state-led movements toward rehabilitating the addicted attorney, little has been done on the national level to address chemical dependency among practicing attorneys. Drawing from the Model Rules of Professional Conduct and the “Mitigating Factor approach” used by some state courts, this Note argues that the current method of dealing with ethical violations that arise from the conduct of alcoholic and addicted attorneys does not provide adequate remedies to protect the public, the profession, or the chemically dependent attorneys individually. The Note proposes an amendment to Rule 8.3 of the Model Rules of Professional Conduct to prevent the harm caused by attorney impairment due to substance abuse. This Note argues that such an amendment is a necessary and timely reform
Ulysses: A Mighty Hero in the Fight for Freedom of Expression
Full text linkJames Joyce’s Ulysses was a revolutionary novel, and this much is common knowledge. What is not common knowledge is how useful Ulysses was in pushing the boundaries of freedom of expression. This masterpiece of literature opened the door for modern American free speech jurisprudence, but in recent years has become more of an object of judicial scorn. This Article seeks to educate legal scholars as to the importance of the novel, and attempts to reverse the anti-intellectual spirit that runs through modern American jurisprudence, where the novel is now more used as an object of mockery, or as a negative example
Affirmative Confusion: A Proposed Paradigm Shift in Higher Education Disciplinary Proceedings
Full text linkThis Note examines the codification of affirmative consent statutes in New York and California as well as the language of Title IX of Education Amendments of 1972, with the ultimate goal of demonstrating that the two statutory constructions cannot co-exist without jeopardizing accused students’ due process rights. During the course of a college or university disciplinary proceeding in an affirmative consent jurisdiction, the potential exists for a burden shift onto the accused student to affirmatively prove consent was obtained. Such a shift directly conflicts with Title IX mandates for prompt and equitable treatment. This Note proposes that in order to mitigate any confusion created by the aforementioned conflict between affirmative consent statutes and Title IX, a policy shift in college and university disciplinary proceedings is necessary. Rather than require an accused student to face a panel of peers and administrators in a hearing forum designed to decide the student’s responsibility, this Note proposes an investigatory model as a more appropriate format for adjudicating sexual assault cases on college campuses. The investigatory model allows colleges and universities to conduct comprehensive interviews and investigations in a less contentious, less formal setting, allowing schools to gather and contest necessary facts to make an informed decision on responsibility and sanctions, while more effectively honoring accused students’ due process rights
Conscience, Coercion, and the Constitution: Some Thoughts
Full text linkAs a consequence, this article will argue that the most viable constitutional strategy for protecting conscientious objectors is to bracket the question of whether it is religiously motivated. Rather, it will focus simply on the question of whether it is a sincerely held moral conviction, while seeking to expand existing freedom of speech case law under the First Amendment to the United States Constitution to maximize protection for people of conscience from being obliged to act contrary to their conscience
