7300 research outputs found
Sort by
“Equal Outcomes”: A Constitutional Comparison of Gender Equality Guarantees in the United States and South Africa
Get PDFThe evolution of women’s rights throughout history has had significant effects on the cultural and legal climate of the world. Each country has its own approach to gender equality, and each country has an impact on the global mindset on women’s roles in society. South Africa, for example, is a new and growing democracy that provides more equality guarantees than even the oldest established democracy – the United States. The exploration of newer ideas and approaches to equality can only benefit the growth and expansion of equal rights in the United States
Another One Bites the Dust: How Jevic Curtailed Creditor Rights to Negotiate in and out of Bankruptcy
Get PDFGone are the days of bankruptcy where the insolvent debtor faced an ignominious execution or was sentenced to lifelong imprisonment to satisfy a creditor\u27s demand for their pound of flesh. The modern U.S. Bankruptcy System has moved beyond its focus on draconian punishment, instead, its focus is on fairness to the debtor and distribution of assets among creditors. With recent Supreme Court cases such as Jevic, significant concerns have been raised about the effectiveness of negotiated agreements, related to, but outside of bankruptcy. These concerns center on the reduction in the fairness of certain debtor tools namely prepackaged and cramdown plans. These plans put creditors in a constantly inferior bargaining position to the debtor, with whom, creditors must negotiate to obtain payment of outstanding obligations. ln contravention of historic fears about bankruptcy\u27s fairness and efficiency, this article addresses a growing concern regarding the treatment of creditors in a debtor-oriented system. This article posits that Jevic has detrimentally altered creditor interests in insolvency and bankruptcy because creditors have been severely limited in their ability to negotiate for preferential payment
It\u27s None of Your Business: State Regulation of Tribal Business Undermines Sovereignty and Justice
Get PDFThe U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three recommendations. First, it argues that the proper first forum for resolving disputes involving tribal businesses is the tribal court system; federal and state courts should be prepared to consider this issue sua sponte if it is not raised by the parties. Second, this Article calls for periodic, systematic audits of federal compliance with Indian treaties, which should evaluate both the federal government’s activities and the federal government’s obligation to prevent state interference with tribes’ treaty-protected rights. Finally, in light of recent legislative proposals and executive actions, this Article asserts that removing barriers to American Indian participation in the political process at all levels will support economic development and self-determination in Indian Country. We contend that all Americans—indigenous or not—have a stake in seeing the federal government uphold its constitutional and treaty-bound commitments to American Indian tribes
A Reasonable Person Standard for Qualified Immunity
No full textAhmaud Arbery, Jacob Blake, Rayshard Brooks, George Floyd, Daniel Prude, Breonna Taylor. In 2020, the United States\u27 longstanding problem of police brutality, especially related to officer encounters with minorities, was on full display. The names listed here are only a snapshot of those cases that garnered the most significant media attention. Though in admittedly differing circumstances, each of these cases demonstrates that both on-duty and off-duty police interactions can have dire, even deadly, consequences. Yet, these situations are only those that resulted in death or severe injury. Invariably, there are numerous other instances where law enforcement, clothed with the state\u27s authority, caused harm to those with whom officers come into contact.
Despite this risk of injury and rampant police brutality, there are often little-to-no consequences for these wrongful police actions. It is exceedingly rare for officers to be charged or indicted for harming people in the course of their work. Compounding this injustice, the civil justice system is also inadequate at compensating parties who are injured at the hands of those sworn to protect them. The primary litigation vehicle through which suffering parties may bring actions against officers for their misdeeds is a civil rights action pursuant to 42 U.S.C. § 1983. Unfortunately, judicially-created defenses to liability often bar the injured party from recovering from the officers who injured them. Through qualified immunity, officers are often immune not only from monetary liability, but also from even being required to participate in the lawsuit. Once an officer raises the defense of qualified immunity, the burden moves to the injured party to prove that the defendant officer violated a clearly established constitutional right in their conduct that caused the plaintiffs suffering. In practice, this prohibits a vast number of claims against law enforcement personnel.
This Article takes aim at qualified immunity. Certainly, ridding United States jurisprudence of the defense altogether is the most preferable outcome for those who wish to see injured parties compensated for the harm they suffered at the hands of the arms of the state. This type of reform is not likely to occur, however. With that in mind, this Article argues that the clearly established right standard is unworkable, unduly burdensome, and out of step with reality. It is plainly unrealistic to maintain that police officers are amply familiar with constitutional law and criminal procedure that law enforcement may ever be deemed on notice of established precedent in those areas of the law. The woeful lack of training given to officers in these doctrines makes it difficult to maintain that law enforcement personnel are aware that their actions violate the constitutional rights of those with whom they are interacting. Given this near-axiomatic proposition, Congress or the Supreme Court of the United States should provide a more workable standard that does not leave injured citizens holding the bag.
Accordingly, this Article offers a simple alternative that is grounded in multiple areas of the law already-a reasonable person test. Under this standard, an officer is not entitled to qualified immunity if a reasonable person, not a reasonable officer, would believe that the officer\u27s action violated the plaintiffs constitutional rights. This standard is objective, looks to common knowledge held in the community, and still offers a viable defense to the police. Moreover, this Article proposes that qualified immunity should cease serving as an immunity to suit but should remain an immunity from liability if proven. The proper procedure for granting qualified immunity is also changed under this system to permit the finder of fact, not the court on summary judgment, to determine the thoughts of a reasonable person.
This Article tackles this issue in multiple parts. Part II discusses the history of Section 1983. This survey includes the impetus behind the legislation and how the Supreme Court has interpreted and applied the act. Part III summarizes the arguments for and against qualified immunity. Part IV offers three case examples of the real harms suffered by plaintiffs at the hands of police, as well as the compounding injustice of qualified immunity when applied to those circumstances. Part V outlines the proposed reformation of the clearly established right formula for qualified immunity. Finally, Part VI concludes by reviewing the above sections and looking forward to opportunities for reform
The Establishment Clause: Its Original Public Meaning and What We Can Learn From the Plain Text
Get PDFModern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.
For the next half century, the High Court’s search was for events and prominent actors reflecting original intent. This is now considered Old Originalism. Its failing is that lawmaking is a collective task, the work of many individuals with multiple intents. Jurisprudential conservatives have urged an interpretation of the U.S. Constitution that is faithful to its time of inception. They increasingly look to New Originalism. This is an interpretive principle that adheres to the ordinary meaning of the text when adopted.
Seemingly Everson and its progeny were asking the wrong question (Old Originalism) about the wrong event (Virginia). The First Amendment is from a different time (1789-90) and lawmaking body (Congress and ratifying states). James Madison is the one common denominator, but his purposes and power to successfully shape the law emerging from these events were altogether different in the two instances.
As the First Congress assembled in New York City in April 1789, Madison still did not concede that a bill of rights was needed to thwart abuses by the new federal government. Yet he saw its usefulness “to limit and qualify the powers of the Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.”
New Originalism looks at a narrower slice of the historical record, maintaining a laser-like focus on the September 1789 meaning of the final words of the Establishment Clause. Still, this interpretative theory requires some knowledge of a wider context to understand what the First Federal Congress was trying to do in settling on this text. Stated a little differently, the authors of a law choose their words to fit the task. How did those in control at the First Congress conceive of their task?
Answering this question requires first going back and briefly exploring the task of the delegates to the 1787 Constitutional Convention, which is the topic of Part I. Then Part II takes up the task of the First Congress in composing and sending amendments to the states. From the start Congress’s task was made easier because the purpose was not to formulate a comprehensive list of unalienable or natural rights. The effort was the far more modest, and hence achievable, task of agreeing on what powers were not vested in the new government by the 1787 Constitution. Thus, the amendments would be stating negatives, that is, identifying what the federal government had no power to do. We look at some of the day-to-day debates in the House and Senate concerning the religious establishment question, not with the aim of determining the original intent of the framers but with the aim of getting insight into the meaning of the words they chose to fit the task.
Part III then hazards what we have learned concerning the original public meaning of the First Amendment text “respecting an establishment of religion.” Finally, no interpretive rule is required when the text alone is definitive. Thus, Part IV turns to consider what we can know from the grammar and plain text of the Religion Clauses. Whether one is an originalist or not, such a textual investigation allows us to put to bed some longstanding myths, such as the claim that the two clauses are in tension and sometimes conflict.
Book Review: Social Media and Democracy: The State of the Field and Prospects for Reform
Get PDFSocial Media and Democracy illuminates the empirical social science research done to date to tease apart the effects social media has had on representative democracies. It is a collection of essays by academic social scientists researching the intersection of social media and democracy from a variety of angles
Exhuming Brutus: Constitutional Rot and Cyclical Calls for Court Reform
Get PDFOnce upon a time, in the late eighteenth and early nineteenth centuries, the phrase “judicial independence” struck fear into the hearts of many Americans, especially those associated with the Anti-Federalist movement. Robert Yates, for example, writing under the pseudonym “Brutus,” wrote with horror of the proposed independence of the judiciary: [The Constitution has] made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself
Missouri Workers’ Compensation Enhanced Benefits for Mesothelioma Victims: Too Crispy or Too Chewy?
Get PDFOne of the most polarizing debates in history surrounds the best chocolate chip cookie recipe. With all controversial, highly opinionated topics, certain parties, or sides, arise. Some argue the ideal cookie is soft and chewy, while others opt for the crispy and crunchy. However, most dedicated cookie enthusiasts argue the objectively best cookie is a compromise – soft in the middle with a slight crunch on the edges. Baking involves precision. If too much or too little of a simple ingredient is added, the entire cookie changes. The cookie might be “fine,” and still edible, but it is not the “best.” This compromise involves a delicate procedure of harmonizing components
Indirect Initiative and Unpopular Referendum in Missouri
Get PDFMost governments in the United States operate as a representative democracy through elected officials. Over time, advocates have successfully reformed many of our institutions to give citizens themselves more power through direct democracy. The direct election of United States Senators, the presidential primary, recall, the direct initiative, and popular referendum are all developments in the governments of the United States that place power directly in the hands of voters. Direct initiatives and popular referendums, specifically, are lingering evidence of the Progressive Era of the 1900s. Like most reforms of that time, proponents of direct initiative and popular referendum believed it would aid in breaking up concentrated political power in corporations and their enablers in the state legislatures. Almost half the states instituted direct initiative and popular referendum before 1920