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Policing in a Democratic Constitution
Get PDFMost constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.
Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and concepts, particularly regarding due process and gender matters. In any case, local constitution drafters will need to consider a wide breadth of options for what to include on policing and what to leave to legislative bodies.
The constitutions in some countries, such as South Africa, Brazil, the Dominican Republic, Fiji, Kenya, and Nigeria, contain significant detail regarding the policing principles, mandates, and governance. In many other states, the constitution contains very limited detail and defers to national legislation for police formation and oversight. Many factors contribute to these variations, including the security status of the country, the context of the democratic transition, and the chosen overall government structure.
Generally, modern constitutional representative democracies require police to serve and protect civilians. The current social movements in the United States addressing mistreatment of people of color and militarization of the police highlight the challenges of managing and training police. Constitution drafters must grapple with complex issues like the potential for misuse of force, the politicization of police, and the relationship between the police and the military. These themes are borne out around the world with constitutional language options as diverse as the States themselves
Unmarked Agents, Accountability, and the Anti-Commandeering Doctrine
Get PDFThe Trump Administration recently deployed federal agents to Portland, Oregon in response to ongoing protests. Notably, these agents wore camouflage and drove unmarked cars instead of uniforms and vehicles that would clearly identify their agency affiliation and whose authority they act under. The administration also deployed officers in riot gear lacking agency identification to the nation’s capital in June.
Critics argue that these actions represent authoritarian tactics, encourage the use excessive force, and overstep the statutory and constitutional powers of the federal government. They sparked another wave of protests in response throughout the country. Here, I want to sketch an argument relating to the recent events in Portland that is different from those criticisms in two ways. First, it situates these actions in relation to the anti-commandeering doctrine, a legal consideration that has received little attention in this context. Second, it focuses squarely on the fact that these federal agents did not make their affiliation plain. If, for instance, federal law enforcement used excessive force in Portland, that would be unlawful regardless of what uniforms they wore or their identifying markings. Here I want to concentrate on the distinct issue of these federal agents being “unmarked,” and the ways in which these unmarked agents challenge the policy of government accountability that is the basis of the anti-commandeering doctrine
Administrative Law and Process, 4th Edition
Get PDFAdministrative law processes enhance participation, transparency, fairness, and access to information in administrative agencies and the government generally. The fourth edition of Administrative Law and Process highlights these issues in a timely manner through both classic and current cases. In Part I, how agencies exercise their powers is explored.
In Part II, the structural and constitutional issues that flow from legislative, executive, and judicial oversight is explored. Key doctrines of administrative law are thoroughly addressed throughout this book, to which Part III adds a new dimension. It focuses directly on how lawyers actually practice administrative law through a series of drafting and strategic planning problems. The three parts of the book are closely interrelated giving professors the option of involving students in simulations that relate to the doctrines and issues they are studying.
See the attacahed Introduction by Professor Aman.https://www.repository.law.indiana.edu/facbooks/1230/thumbnail.jp
Cyber Insurance as Cyber Diplomacy
No full textProfessor Lubin\u27s contribution to this volume is chapter 2: Cyber Insurance as Cyber Diplomacy.https://www.repository.law.indiana.edu/facbooks/1232/thumbnail.jp
Copyright\u27s Fixation Requirement: Is It Still Needed?
Get PDFWhile the United States requires fixation for an original work to be entitled to federal copyright protection, many other countries ignore such requirement. The difference could lead to partial copyright protection standards across jurisdictions over certain works that are not fixed. Examples of such works include extemporaneous speeches, lectures, improvisational performances, and contemporary arts that are transitory. Moreover, with today’s rapid development of arts and technologies, creative works can be presented via new media without being fixed in a traditional way. The examples include live streams of lectures and music performances, which have become part of the “new normal.” In order to tackle the issue of the necessity of fixation, this paper looks into a brief historical development of copyright law, followed by an overview of copyright legislations of civil law countries in which authors of unfixed works enjoy copyright protection. The research then examines American copyright law and its unsettled definition of fixation, which articulates how the fixation requirement could easily exclude a large quantity of creative work from copyright protection. Lastly, the paper studies the roles of registration and deposition as copyright formalities in the United States to see whether they serve the same functions as the fixation requirement does. As registration and deposition formalities can perform the fixation requirement’s tasks, in light of promoting useful arts and rewarding authors for their creativity regardless of the form of expression, the paper suggests fixation as a federal copyright prerequisite could be entirely discarded
Contract Law’s Transferability Bias
Get PDFWhen A makes a contract with B, it comes as no surprise that she is liable to B. If B can transfer her contractual rights to C, A is now liable to C. Parties in A’s position often have strong reasons to avoid being liable to suit by C. Contract law, however, seems determined to minimize and override these concerns. Under current doctrine on the assignment of contractual rights—the focus of this Article—the law often imposes its own preference for transferability on the parties. The law generally assumes that contractual rights are assignable, construes exceptions to that general rule narrowly, and renders it either impossible or extremely difficult for the parties to make rights nonassignable by agreement. After examining the range of techniques courts and legislators use to promote the transferability of contractual rights, the Article contends that these practices cannot be squared with contract law’s basic principles. The law’s pro-transferability policy appears to be based on an intuitive but dubious economic theory, which in turn is premised on an inaccurate vision of contracts as impersonal exchanges. The Article proposes reforms to make this aspect of contract law more faithful to the relationships it regulates and supports
Jost Delbrück: a Reflection
No full textA profile and tribute to the international legal scholar Jost Delbrück (1935-2020), written by his good friend and colleague Alfred Aman. Delbrück was not only a graduate of the Indiana University School of Law, but was also a Maurer faculty member
On Beauty and Policing
Get PDF“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and serve us all.
This Article examines how police preserve racial and gender subordination in South Africa, an instructive analog for the United States because of both nations’ shared histories of racial apartheid and valorization of whiteness. Drawing from extensive original data from a multiyear study, this Article exposes how police officers’ perceptions about sex workers’ beauty influenced their policing of different classes of sex workers in Johannesburg, South Africa. Police valuations about sex workers’ beauty resulted in benevolent surveillance of sex workers who were higher on the social hierarchy and decreased police protection for sex workers whom they viewed as less beautiful in more dangerous areas of the community. If community protection and service were the primary motivators for police conduct, police officers should have focused on the spaces that were more dangerous, which were those with sex workers police deemed less professionalized and less beautiful.
This act of assigning value to different bodies, through the subjective language of aesthetics and beauty, reinforced existing racial and sexual hierarchies. Beauty was a proxy for race. Police assigned higher values to whiter and more European bodies, and discounted blacker bodies as foreign and less beautiful. So blacker bodies, which were less valuable than whiter bodies in their eyes, were simultaneously neglected yet susceptible to more brutal forms of policing during their limited interactions with police. Whiter feminine bodies were both well-protected and subject to the constant gaze of the police. These whiter bodies were ignored when they challenged white masculinity, but prioritized over blacker bodies. Reinforcing the higher value of whiter bodies over blacker bodies took precedence over reducing crime, suggesting that police serve and protect racial hierarchies in countries that have a history of white supremacy before they serve and protect the people