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Police Mistakes of Law, Heien v. North Carolina and Significant Fourth Amendment Interpretive Cases: An Empirical Examination of Officer Perception, Knowledge and Performance
Get PDFThis empirical study examines legal aspects of policing in relation to the landmark Fourth Amendment United States Supreme Court case of Heien v. North Carolina. In Heien, the Court found that objectively reasonable mistakes of law by police can support traffic stops. By doing so, Heien extends the permissible margin of error for these stops by law enforcement officers. Due to the potential far-reaching implications of Heien for law enforcement conduct and Fourth Amendment privacy protections, this study aims to empirically examine officer perception and knowledge regarding Heien, including officers’ decision-making behavior with respect to Heien and its core concept of reasonable officer mistakes of laws. Utilizing a survey questionnaire administered to patrol officers, this study also examines officer understanding of key, paradigmatic interpretive cases for Heien. This is the first known study to empirically examine police perception and knowledge of Heien, its core concepts as well as interpretive jurisprudence
“Hey Girlie, Want to Sell Your Soul?” How the U.S. Can Counteract Predatory Cult Activities Through the Lens of Fraudulent Business Schemes
Get PDFThis paper investigates the parallels between predatory New Religious Movements (NRMs) and fraudulent business schemes such as pyramid and Ponzi schemes. By examining their recruitment tactics, psychological manipulation, and exploitation of economic vulnerabilities, this paper reveals how these organizations target socially and economically unstable populations for financial gain. The study proposes two strategic interventions: first, using the Social Vulnerability Index to develop proactive government responses, including targeted public service announcements and law enforcement education; and second, creating an IRS database requiring detailed financial reporting from tax-exempt organizations. The goal is to address systemic vulnerabilities through data-driven policy, increased transparency, and preemptive protective measures against these predatory organization
Bostock and the Forgotten EEOC
Get PDFIn Bostock v. Clayton County, Georgia, the Supreme Court formally recognized that federal discrimination law prohibits discrimination based on sexual orientation and gender identity. The opinion barely mentioned the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal discrimination law. Reading Bostock, it would be easy to get the impression that the EEOC played little to no role in the outcome. This Essay reclaims and restores the EEOC\u27s role.
In restoring the EEOC\u27s role in this story, two themes emerge. First, Bostock\u27s methodology erases the administrative agency tasked with enforcing Title VII in ways that are inconsistent with the authority Congress gave to the agency. This idea is important because modern conversations about administrative agencies tend to focus on Chevron deference or the elimination of such deference. This Essay demonstrates how textualism is erasing the administrative agency outside of the Chevron context. This intervention comes at a particularly important time, given the rise ofnew textualism and progressive textualism.
Second, the EEOC played an important role in developing the idea that Title VII prohibits discrimination on the basis of gender identity. This Essay demonstrates the mechanisms the agency used. It especially focuses on the EEOC\u27s role under the federal-sector provision. Congress gave the EEOC extensive authority in this area. Even though the federal-sector provision also prohibits sex discrimination, the Supreme Court ignored the EEOC\u27s federalsector decisions holding that sex included gender identity. Given the power Congress gave the EEOC in this area and others, it is unlikely that Congress intended for the courts to ignore the agency
On the Hook: Venue, Vicinage, and Double Jeopardy’s Relationship with Modern Data Crimes
Get PDFEvery fisherman has a place he holds dear. Whether it be a mountain creek small enough to hop across or a reef in the Gulf of Mexico, we all have a place where “the big one” defeated us. Conversely, we all have a spot in which we emerged victorious, spurring feelings of elation. We all have memories so compelling that we feel the need to share our stories around the dinner table and remind friends how much they missed out on that day. Ingrained in my memory is the flash of a twenty-inch brown trout sipping a fly from the surface of the Fraser River, jumping out of the water, and snapping my line. I can recall almost every detail of the experience: the strength of the current, the speckled moss on the pesky rock the fish used for cover, and the size sixteen elk hair caddis fly that I lost in the process. For reference, I saved the GPS coordinates so I can revisit the exact spot to flip the script. GPS coordinates provide a quick and easy means to return to a favorite place or to explore somewhere new without undue wandering. Timothy Smith understood the value of this technical knowledge, as indicated by his efforts to steal coordinates generated by others
Petition Power
No full textThe law cannot be kept secret. We cannot comply with rules that we do not know. Nor can we question their legitimacy, which is both our right and our duty as citizens. And yet, a substantial body of law applied in this country is difficult for anyone but federal agency insiders to piece together. Rather than publishing regulations that lay out standards of conduct for the future, many agencies interpret the law, and articulate and implement new policies, as they go. Those subject to the law they implement are left to piece the rules together by studying whatever information is available about the individual decisions. This undermines the rule of law. This Article describes an administrative mechanism that can help restore the rule of law. That mechanism is a petitioning procedure, and this suggestion is based on studying decades of petitioning at the one federal agency with a formal procedure for accepting and considering any type of petition from any interested party — the Food and Drug Administration. If an agency faces a meaningful threat of judicial review in litigation brought by a petitioner, a petition can prompt it to articulate and explain its statutory interpretations and regulatory policies publicly, rather than simply implementing and illustrating policy as it makes case-by-case decisions. A petition back by the meaningful threat of judicial review can also force an agency to comply with a statutory mandate or correct errors in law or fact. In short, petitions—some petitions, that is—can increase transparency and through it contribute to the accountability of the administrative state
It\u27s Time to Make Important Upgrades to Our Mediation Curriculum
No full textIn the past five decades, mediation practice and teaching have grown in size and sophistication. Inevitably, some ideas that made sense early in this development need revision and updating to reflect evolving realities and improved understandings. This is a moment deserving reflection about what faculty should teach about mediation, especially in light of the NextGen bar exam and changes in various states’ licensing regimes.
This article suggests various upgrades of our mediation instruction. Change is hard but can be worth the effort. The article includes numerous specific suggestions and links to handy resources that faculty can incorporate in their courses with modest adjustments to prior offerings
Arbitration and the Mandatory Law Problem: A Mixed Mode ADR Approach
Get PDFRigorous scholarly debate has shaped the discussion on the application of mandatory laws and public policy in arbitration, which has led to an array of legal solutions to the mandatory law problem. The determination of the applicable law in arbitration is a dilemma due to arbitrators’ contractual source of authority and commitments to the parties, their mandate to issue an enforceable award, and the imperative nature of mandatory laws at stake. Proposed solutions thus far have primarily been suggestions that are based on either contractual concerns of the parties, jurisdictional (mandatory law) concerns of states involved, or a mix of the two extreme ends. Depending on the circumstances of a particular case, these suggestions could warrant a workable legal solution. However, when the complexity of the question of what law(s) the arbitrator should apply is multidimensional, a more flexible approach should be available to arbitrators. This Article suggests a new and unique procedural mechanism for this substantive law problem: a multitiered alternative dispute resolution approach. An Arb-Med-Arb (Arbitration-Mediation-Arbitration) mechanism allows the arbitrator to switch hats between arbitration and mediation, and with active cooperation of the parties, make appropriate arrangements on a case-by-case basis that respond to both contractual and jurisdictional concerns of the case at hand. This Article first explains mandatory laws and the problem they present in international commercial arbitration. It then discusses the theoretical approaches to the nature of arbitration and the suggested legal solutions for the problem. Finally, it proposes the use of Arb-Med-Arb in the context of mandatory laws and the specific approach the arbitrator-mediator should take within the mediation stage
Mandatory Mediation in England and Wales: A Paradigm Shift in Dispute Resolution
Get PDFIn May of 2023, Tribunals in England and Wales had a backlog of nearly 144,000 cases. In a press release issued on July 25, 2023, the Ministry of Justice (MoJ) unveiled a significant policy change to combat this backlog. Under its new directive, individuals or entities wishing to pursue debt recovery claims of £10,000 or less are required to engage in mediation proceedings prior to their case’s adjudication in the small claims courts of England and Wales. This transformative shift signifies a departure from the traditional adversarial litigation model of both of these countries’ judicial systems
How Can Courts–Practically for Free–Help Parties Prepare for Mediation Sessions?
Get PDFConsider two hypothetical scenarios of mediations of a personal injury lawsuit. In one scenario, Kenji, the plaintiff, arrived at the mediation session feeling anxious because his attorney hadn’t told him much about the process and he didn’t know what to expect. He didn’t understand the factual and legal issues, how the mediation would unfold, or how he might participate in the process. He felt demoralized because he didn’t know enough to feel confident and assertive about making decisions in his case. In the mediation session, he spent a lot of time alternately hearing the mediator explain why he couldn’t get as much money as he expected and waiting for the mediator to come back after “caucusing” with the other side. Kenji felt increasingly frustrated because the mediator – and sometimes his own attorney – repeatedly encouraged him to reduce his demands. He grudgingly went along with most of their suggestions, but he became so angry that he almost decided not to settle. He eventually accepted the defendant’s last offer because it was late in the day. His attorney and the mediator emphasized that he could avoid the stress of continued litigation by settling right then. When he got home, he had buyer’s remorse, feeling that he got less money than he deserved. He was furious at everyone including the defense counsel, the mediator, and especially his attorney because he felt blindsided in the process