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Hernandez, Bivens, and the Supreme Court\u27s Expanding Theory of Judicial Abdication
Get PDFSergio Adrián Hernández Güereca, a fifteen-year-old Mexican child, was playing with his friends in Mexico when he was shot in the face by a U.S. Border Patrol Agent standing in the United States. Sergio died on the concrete ground where he fell.
In Hernandez v. Mesa, Sergio’s family brought a federal lawsuit seeking to hold Agent Jesus Mesa, Jr. responsible for the death of their son. They alleged Agent Mesa had violated Sergio’s constitutional rights and based their claim on the Bivens doctrine. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court established a limited right to sue federal government officials for constitutional violations. Historically, damages remedies had long been recognized “for an invasion of personal interests in liberty.” The Court noted in Bivens that federal courts maintained a unique role in protecting the Bill of Rights. Damages remedies would serve that purpose by “deter[ring] individual federal officers from committing constitutional violations.” Since 1971, Bivens has allowed federal courts to acknowledge a cause of action against federal officials for violations of certain constitutional rights. Sergio’s family argued that Agent Mesa should be civilly liable under the Bivens doctrine for violating the Fourth and Fifth Amendments because he shot and killed Sergio without cause.
In a 5–4 decision, the Supreme Court rejected the lawsuit, holding the Constitution provided Sergio’s family no such remedy. Given the Roberts Court’s skepticism of the Bivens doctrine, the decision is not surprising. It is consistent with a line of Supreme Court cases that has effectively ended Bivens remedies for constitutional violations. Indeed, it is a reflection of the Court’s continued abdication of the judiciary’s role as an adjudicator of rights and a coequal branch of government.
This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandez involved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that examines whether a constitutional right is fundamental to our scheme of ordered liberty and has deep roots in our history and tradition. This Essay proposes that a similar methodology be used to assess whether a civil remedy exists for violations of constitutional rights by federal officials
Rethinking the Environmental Quality of Brazilian Beaches: The Incidence of Microplastics as Indicator for Sea Water and Sand Quality
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Criminalizing Coercive Control Within the Limits of Due Process
Get PDFThe sociological literature on domestic abuse shows that it is more complex than a series of physical assaults. Abusers use “coercive control” to subjugate their partners through a web of threats, humiliation, isolation, and demands. The presence of coercive control is highly predictive of future physical violence and is, in and of itself, also a violation of the victim’s liberty and dignity. In response to these new understandings the United Kingdom has recently criminalized nonviolent coercive control, making it illegal to, on two or more occasions, cause “serious alarm or distress” to an intimate partner that has a “substantial effect” on their “day-to-day activities.” Such a vaguely drafted criminal statute would raise insurmountable due process problems under the U.S. Constitution.
Should the states wish to address the gravity of the harms of coercive control, however, this Article proposes an alternative statutory approach. It argues that a state legislature could combine the due process limits of traditionally enterprise-related offenses such as fraud and conspiracy with the goals of domestic abuse prevention to create a new offense based upon the fraud-like nature of coercively controlling behavior. It argues that the most useful legal framework for defining coercive control is similar to that of common law fraud, and that legislatures should adapt the scienter requirements of fraud to the actus reus of coercive control. In so doing, this Article also argues that it is risky for legislatures to punish gender-correlated offenses with specialized legal solutions, rather than recognizing the interrelationship between such offenses and other well-established crimes
Standing in Between Sexual Violence Victims and Access to Justice: The Limits of Title IX
Get PDFSexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by the Supreme Court to provide a private right of action by which victims can hold institutions accountable.
In the most typical cases, one enrolled student accuses another enrolled student of sexual assault. The university investigates, perhaps holds a hearing panel, issues a determination after applying the relevant evidentiary standard, and, where warranted, imposes appropriate sanctions. If a student victim is dissatisfied with the institutional response, they have the right to sue the school in federal court. Not all cases follow this typical example, however, raising the question of who, specifically, is entitled to avail themselves of the protections of Title IX. Sometimes victims are visitors or outsiders who have been raped or assaulted on campus by enrolled students. Their right to sue educational institutions has been called into question by courts that have denied them standing to sue the schools in federal court.
Historically, some judges have used the standing doctrine to deny access to the courts to certain minority groups. Victims of sexual violence represent a new addition to this cohort of excluded parties. A growing number of federal district courts have barred this class of victims from pursuing their grievances against colleges and universities based ostensibly on their outsider or non-student status, and federal appellate courts have, to date, been reluctant to take a stand either way. A new case that has emerged along these same trend lines is currently percolating in the Sixth Circuit, brought by a woman who was sexually assaulted in a dormitory at the University of Kentucky (UK). The plaintiff in this case was not actually enrolled at UK but resided in campus housing while attending a community college per a formal agreement between institutions. When she sued UK under Title IX for its deliberate indifference in responding to her reported rape, the trial court dismissed her case without reaching the merits. Instead, the court used a narrow interpretation of standing, finding that in order to sue a school under Title IX, an individual must be formally enrolled as a student or enrolled in a program or activity of that institution.
This distinction between insider and outsider rape victims is wholly problematic. Colleges and universities, while reliant on the presence of and tuition generated by their enrolled students, cannot entirely depend on insiders to succeed. They actively solicit, depend on, and profit from engagement with outsiders every single day as a means to fulfill their educational mission. This Article will use Doe v. University of Kentucky as a point of contemporary illustration (filled in by the decisions of other similar cases) to argue that individuals who are sexually assaulted on college campuses should be afforded equal access to Title IX protections and, specifically, should be granted standing to sue regardless of their enrollment status
Traditional Knowledge in Taiwan: A Call for Greater Participation of Indigenous Peoples in the Global Intellectual Property Marketplace
Get PDFThis Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island\u27s government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the current regulation of Traditional Knowledge, both internationally and within Taiwan, and calls for a new international treaty in which the Republic of China could take part under the auspices of the World Trade Organization to which Taiwan belongs
Victim Impact Statements and Corporate Sex Crimes
Get PDFThis Article argues that more frequently including victim impact statements during the sentencing phase of corporate criminal trials would help lay foundation for legislative reforms geared towards punishing corporations on the occasions where genuinely corporate misconduct, such as that of USAG and the Weinstein Company, can be said to have caused sexual offenses. The Article proceeds in three Parts. First, I argue that criminal enforcement against corporations is generally untethered from harm to victims, and that this thwarts one of the most coherent justifications for the existence of corporate criminal liability. Next, I argue that a focus on victim narratives in sentencing, where relevant, can both restore coherence to the project of corporate criminal liability and expand public understanding of corporations as potential perpetrators of violent criminal offenses. Finally, I conclude by speculating about how an increased role for the victim in the prosecution of entities generally might lead to a greater willingness among legislatures, prosecutors, and the general public to recognize corporations as capable of sex offenses
From Outer Space to Ocean Depths: The ‘Spacecraft Cemetery’ and the Protection of the Marine Environment in Areas Beyond National Jurisdiction
Get PDFVirtual Hatred: How Russia Tried to Start a Race War in the United States
Get PDFDuring the 2016 U.S. presidential election, the Russian government engaged in a sophisticated strategy to influence the U.S. political system and manipulate American democracy. While most news reports have focused on the cyber-attacks aimed at Democratic Party leaders and possible contacts between Russian officials and the Trump presidential campaign, a more pernicious intervention took place. Throughout the campaign, Russian operatives created hundreds of fake personas on social media platforms and then posted thousands of advertisements and messages that sought to promote racial divisions in the United States. This was a coordinated propaganda effort. Some Facebook and Titter posts denounced the Black Lives Matter movement and others condemned White nationalist groups. Some called for violence. To be clear, these were posts by fake personas created by Russian operatives. But their effects were real. The purpose of this strategy was to manipulate public opinion on racial issues and disrupt the political process. This Article examines Russia\u27s actions and considers whether they violate the international prohibitions against racial discrimination and hate speech