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The “Dire Plight” Contextualized: Comment on “The Fiction of Equitable Distribution: Military Divorce, Disability, and the ‘Dire Plight’ of the Former Military Spouse” by Zoe Speas
Full text linkFor forty years, military spouses have sacrificed their economic security and personal well-being to support their servicemember spouse’s military career, only to be thrust into a “dire plight” if their marriage ends in a community property state. The legislative policy that put them in this untenable position has not served federal interests: the military currently faces a recruiting crisis and military spouses’ economic security has not improved since the USFSPA. It is time for Congress and the DoD to reexamine the incentives and benefits provided to servicemembers and their families. Congress and the Court must end the USFSPA’s groundless, inequitable, and inconsistently applied legacy by focusing on making it easier and more appealing to live as a military family. Doing so will serve the “clear and substantial” interests of the military to recruit, retain, and retire a strong military while also improving outcomes for military families. This is a rare opportunity for Congress to be pro-military, pro-women, and pro-family
Democracy, History, and Washington and Lee
Full text linkAt Washington and Lee, it is customary for the new holder of an endowed professorship to deliver a public lecture called a chair talk to mark their installation. This is a lightly edited and footnoted version of Professor Seaman\u27s chair talk on October 8, 2024, given as the new Robert E.R. Huntley Professor of Law
Saving Private Unfaithful: An Argument for Administrative Separation and Action in Lieu of Criminalizing Extramarital Sexual Conduct
Full text linkIn order to keep America’s armed forces deadly, ESC must be decriminalized. The MCM’s 2019 update to start including non-heterosexual marriages and affairs tragically expands the reach of ESC. This Note presents new data on charging patterns of ESC in the Marines, highlighting the crime’s active use. ESC continues to overcompensate for behavior prejudicial to good order and discipline or service discrediting; this overcompensation results in subjecting non-prejudicial and non-service-discrediting behavior to criminal action, simultaneously infringing on service members’ constitutional rights and serving as fodder for public outcry. Military leaders should decriminalize ESC and alternatively penalize the behavior by administrative action or Administrative Separation. It’s time to save Private Unfaithful
Cannabis at Work: Navigating the Intersection of Employment Law and Legalized Marijuana
Full text linkAs states increasingly legalize forms of cannabis use, federal regulation remains stagnant. These outdated laws still hold power, undermining state-granted rights. This impact is especially felt in the employment sector. While states pass laws legalizing cannabis use, employers still have a right to a drug free workplace. Many employment agreements prohibit drug use, even if legal under state law. This Note examines recent caselaw to analyze how courts are handling the battle between state and federal government as it relates to cannabis legalization. Ultimately, the argument highlights the risk employees face – engaging in what they believe is legal behavior while inadvertently being subject to adverse employment action
Discretionary (In)Justice Continued: Discretion as a Tool to Deny Asylum
Full text linkIn 2012, I published an article entitled Discretionary (In)justice: The Exercise of Discretion in Claims for Asylum. At that time, I was concerned because of a pattern I had seen of adjudicators in individual cases denying applications for asylum not on the basis of statutory eligibility but instead in an exercise of the adjudicator’s discretion. Since that time, the administrations of both the former President Trump and the now-current President Biden have used every legal tool available to them, including the exercise of discretion in asylum claims, to make it more difficult to obtain asylum and therefore to discourage and prevent asylum seekers from seeking protection in the United States. This article surveys decisions of the Board of Immigration Appeals and the federal Circuit Courts of Appeal and attempted regulations related to the exercise of discretion in asylum claims from 2011 through the summer of 2024 to identify similarities, changes, and trends since Discretionary (In)justice.
It reveals that the issues with the exercise of discretion in claims for asylum uncovered in my analysis of the caselaw from 1980 through 2011 continue to be present. Overlap and fluidity between elements of statutory eligibility and discretionary factors have persisted. Courts still struggle significantly with the role that past and future persecution, including a grant of withholding of removal, should play in the discretionary analysis. Discretionary determinations remain all-encompassing, opening the door to bias and arbitrary decision making. Finally, the inherent meaning of the term discretion is no more clear now than it was previously, and the word continues to be used to mean a number of different things in the same context. New problems have also arisen since 2011, tied to cultural shifts. One relevant cultural shift has been towards increasing politicization of immigration generally and intensifying villainization of asylum seekers specifically. A second noteworthy shift has been growing involvement and pressure by the executive on the administrative agencies including nominally independent adjudicators to achieve results conforming with the executive’s stance. This has resulted in pressure to issue discretionary determinations in individual cases that are increasingly negative as well as attempts to move towards wholesale discretionary denials to categories of asylum seekers.
While I argued in Discretionary (In)justice that perhaps discretion could be sufficiently cabined to avoid these issues, I now believe this is not possible. In order to protect asylum seekers and insulate asylum law from future interference by the president, the exercise of discretion in asylum claims must be abolished. Asylum must be mandatory rather than discretionary
Title 18’s Property Conundrum
Full text link“Property,” in legal terms, carries significant weight. Once an object is heralded as “property,” that object becomes a step closer to being afforded the protections of the Constitution, offered equitable remedies at a court’s disposal, or even subjected to taxation by the state or federal government. Defining an object as “property” also puts it within the reach of the Title 18 property fraud statutes. Title 18’s fraud statutes have been often lauded by federal prosecutors for their “extraordinary utility.” In their current iteration, these statutes criminalize schemes to defraud “money,” “property,” and “the intangible right of honest services.” But what exactly constitutes “property”? As simple as the question may appear, it is not so easily answered by jurists, scholars, and practitioners. Of course, one can proffer objects like land or something more generic like “goods” as obvious answers. But the simplicity of the question evaporates when it is asked in relation to a criminal statute. Surprisingly, we are left with the maxim that property is what “the law declares to be property,” rendering a vagueness that should be antithetical to criminal law and statutes. Therein lies the conundrum. Title 18’s “property” conundrum, however, isn’t simply a catchy rhetorical quip; rather, it is a Gordian knot tied by decades of federal jurisprudence. It is this kind of “property” that lies at the heart of the Supreme Court’s Title 18 “property” decisions and is the subject of this Article. This Article provides the first in depth look at the progeny of Title 18 property decisions by the Supreme Court, outlines the inconsistencies, and offers a variety of implications for the checkered understanding of property across the past few decades