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Pathways to Justice: Positive Rights, State Constitutions, and Untapped Potential
Get PDFPositive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They\u27ve been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the social contract, they should be entitled to certain positive protections guaranteed by the state created by way of said contract. Examples of positive rights range widely, including the right to education, right to welfare, workers\u27 rights, environmental rights, and the right to housing.
Many foreign constitutions explicitly provide for positive rights found in their constitutions. And, in the context of international human rights, the Universal Declaration of Human Rights clearly and unmistakably advocates for various positive rights. In contrast, the United States Constitution does not contain any positive rights, and the United States Supreme Court has held that the federal Constitution does not obligate the state to provide for its citizens. As an integral part of a federalist system of government, however, the individual states within the United States are not governed solely by the federal Constitution. They each have their own constitutions, and one can find a litany of examples of positive rights such state constitutions. These positive rights provisions did not appear by accident or chance but were the result of the effort put forth by reformists, activists, advocates, and lawyers who sought to codify the government\u27s affirmative duty to act in support of its citizens. This Article examines these individual strands of history, discusses the subsequent judicial enforcement (or lack thereof) of such provisions, and ultimately advocates for continued efforts to expand the breadth of positive rights provisions already present and to amend state constitutions to add additional protections
Who Bears the Burden? A Collectivist Approach to Resolving Pandemic Relief Overpayments
Get PDFUnemployment rates soared when COVID-19 hit the U.S. While pandemic relief programs allowed millions to meet their basic needs, a new problem emerged: overpayments. Overpayments occur when state agencies give claimants benefits they were not entitled to. While most claimants were not at fault for these mistakes, millions are now expected to repay benefits they spent months ago. Thus far, the U.S. has prioritized fraud detection over this overpayment crisis. This misguided effort is representative of the destructive, individualistic American welfare culture at large. This note advocates for a solution rooted in collectivist European values: amending the Coronavirus Aid, Relief, and Economic Security ( CARES ) Act to require blanket waivers for all no-fault COVID-related overpayments. This solution would support both states and individual claimants as they recover from the financial devastation of COVID-19
Sovereign, Employer, Community: A Theory of Military Justice Beyond Discipline, Obedience, and Efficiency
Get PDFUnfortunately, when we look for such a theory to understand or legitimate the structure, foundational premises, and evolutionary path of the U.S. military’s separate criminal justice system, we find only a mirage—the blurry image of a super-rationale that simply evaporates the closer we inspect it. There is no theory that sheds light on why the system is what it is, nor how or why it could change further. This Article proposes such a theory. Aside from breaking ground as the first comprehensive theory of military justice in the field’s storied history, it aims to contribute to legislators’, the courts’, commanders’, and the general public’s understanding of the American model of military criminal law in several novel ways. It places the unquestionable de-militarization of military justice in historical context, demonstrating that the changes to the character of this system are the result of a competition among the inharmonious values of military effectiveness, the fair administration of justice, and the vague but cliched “discipline.” It frames military justice at the most abstract of levels, for the first time, as a “strategy.” Along the way, the theory is constructed out of nine propositions, some of which are presented with a test suite of possible questions we might ask about the current system to validate that proposition’s correspondence to practical reality.
Significant among these propositions is a new idea: military justice reflects the conditions and constraints created by the government upon interacting with the individual servicemember in three distinct, but overlapping, relationships: as a sovereign, as an employer, and as a community. The consequence of framing it in these three relationship modes is the heart of another key proposition: that the coercive form of military law is better described as a set of “control features”—means and methods through which legal authority over servicemembers is exercised in each of the three relationship modes. This reframing of military justice for the first time suggests that—in light of these three relationship modes and their respective coercive control features—a legitimate military justice system makes substantive and procedural distinctions between “punishment,” “discipline,” and “censure.” Doing so reflects not only criminal law principles but reveals a surprising affinity with contract, agency, and tort law
A Brief Legal History of Wisconsin Conservation
Get PDFThe State of Wisconsin’s longstanding conservation ethic includes the passage of the Conservation Education Statute, which required conservation of natural resources be taught in public schools, and the creation of “Earth Day.” However, a lack of recent interest and scholarship in Wisconsin’s important conversation history and development of conservation law has driven us to write this Article which offers a brief legal history of Wisconsin conservation— how the state’s conservation values were expressed in law, how its natural resources law has evolved and what that has (and has not) embodied, and how Wisconsin helps us define modern concepts of “conservation.” Specifically, this Article discusses the pre- and post-WWII history of Wisconsin conservation law and explores the nature of Wisconsin’s conservation movement and law— why it came to be, why it now finds itself in decline, and what lessons should be carried forward. We argue that the elements that allowed for Wisconsin’s exceptional conservation record were neither surprising nor revolutionary. Instead, the combination of public investment in conservation causes, the creation of jobs that allowed working class Wisconsinites to become stewards to their natural resources, and the state’s established commitment to providing broad access to policymakers helped make environmentalism a personal issue for Wisconsinites from across the sociopolitical spectrum. The slow erosion over several decades of the coalitions between working class and academic environmentalists, large-scale divestment from conservation causes, and the rerouting of jobs in conservation to industry—led by groups who tend to oppose regulation for being anti-business—fostered the decline of conservation policy in the state. Moreover, this decline, we argue, effectively mirrors environmentalism’s decline at the national level. Nevertheless, by understanding how environmentalism came to falter in Wisconsin, we hope to better understand how it can regain its footing, both in the state and elsewhere
How Santa Clara Law\u27s Tech Edge JD Program Improves the School\u27s Admissions Yield, Diversity, & Employment Outcomes
Get PDFSurvey & Legal Analysis of Select Global Trademark Anti-counterfeiting Statutes & Evidence of Prosecutions
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