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Rectifying Historical Wrongs: The Case for the Indigenous’ Inherent Right to Self–Govern Child Welfare in Canada
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Restoring the Soul to Birthing in Miami: A Call for Justice for Obstetric Racism in Miami–Dade County
Full text linkFor far too many Black mothers and birthing people, U.S. hospitals are dangerous and fail to keep our Black mothers and birthing people and their babies safe, alive, and thriving during and after childbirth. The confluence of medical racism and obstetric violence—obstetric racism—leads to a disproportionate rate of predictable, preventable, and unfair death, sickness, and trauma for Black birthing people and babies in the afterlife of slavery. Obstetric racism, as defined by Davis, is both an analytic and phenomenon that describes mechanisms of subordination, control, and dominance to which Black mothers and birthing people are subjected by health systems and health professionals, that track along histories of anti–Black racism and eugenics.1 Obstetric racism defines values, and shapes beliefs, practices, behaviors, policies, procedures, processes, and programs imposed against Black mothers and birthing people that manifest in one of six ways: neglect, disrespect, and dismissiveness; diagnostic lapses; ceremonies of degradation; medical abuse; coercion; intentionally causing pain. In contrast to the profound psychospiritual birthing experience they desire and deserve, Black birthing people often face abuse, disrespect, and coercion during childbirth, with dire, long–lasting consequences for their entire families. Significantly, these health inequities exist regardless of advances in reproductive technology, implementation of traditional patient safety bundles, and their socioeconomic and educational status. After nearly dying giving birth in a Miami hospital, one Black mother shared: “I will never in my life give birth in Miami–Dade County agai
Taking the Sting Out of the Slap on the Wrist: Why the Tax Cuts and Jobs Act Deductibility Carve-outs Under I.R.C. Section 162(f) are Hurting the Average American Taxpayer
Full text linkThe Section 162(f) carve-outs created under the Tax Cuts and Jobs Act of 2017 should concern all taxpayers. Where there were no exceptions previously, now both civil and criminal wrongdoers have the potential to deduct the payments they make in restitution for their actions from their taxable income as a business loss. These carve-outs represent government spending for the benefit of individuals and corporations behaving badly and at the expense of the average American taxpayer. The government is leaving tax revenue on the table by allowing deductibility for fines and penalties, which negatively impacts the federal “power of the purse.” For that, all American taxpayers should be concerned.
The carve-outs under I.R.C. Section 162(f) should be eliminated for three reasons: they are unfair to the average American; they increase the time and cost expended to reach settlement agreements; and because they benefit an unsympathetic category of taxpayers, their elimination is politically feasible. By creating a deductibility exception to the rule that penalties and fines are not deductible as a business expense, Congress has reduced the financial burden on individuals and companies penalized for violating the law. The complexity of the rule’s language invites aggressive taxpayer positions and demands increased government resources in response. Finally, the potential for bipartisan support in closing this loophole, which benefits a politically unsympathetic group, suggests that Congress could take swift action to rectify this inequity
Forfeiture Takings, Police Power, and Necessity Destruction
No full textCivil forfeiture laws allow law enforcement to seize property when there is probable cause it has been used or possessed in violation of legal rules, often before an owner has a chance to contest the government’s seizure in court. In the criminal context, forfeiture is typically an in personam action that requires a criminal conviction and is part of a defendant’s sentence. In the civil context, however, forfeiture is an in rem proceeding brought against the property derived from or used to commit an offense––not against the person who committed the offense. As such, a civil forfeiture may not require a criminal conviction or predeprivation hearing, and, under the “guilty property” theory, developed in England before eventually being incorporated into the United States judicial system, may even apply to property whose owner may be wholly innocent of any wrongdoing. In many cases, the value of the property seized does not justify hiring a lawyer even if the owner could afford one. Law enforcement then uses these assets to supplement their operations budgets, which, in turn, may alter prosecutorial priorities and approaches.
The focus of this Article is how the Takings Clause should apply to civil forfeiture given the recent Supreme Court decision in Tyler v. Hennepin County addressing tax forfeitures. In many of the civil forfeiture cases, the takings claims have been rejected based on the “police power” exception. Similarly, courts have dismissed takings claims to recover for the police damage or destruction of the property of innocent owners during law enforcement activity based on the “police power” or the “necessity” exception to takings law. The Article analyzes and denounces the courts’ continuing use of the nonsensical “police power” and “necessity” exceptions to the Takings Clause to dismiss takings claims against the government for civil forfeiture and police destruction of private property. In addition to examining the historical background of criminal and civil forfeitures, the Article discusses due process challenges to the seizure and forfeiture of property based on the divide between civil and criminal proceedings and examines the role that excessive fines challenges play in civil forfeitures.
The Article proposes a framework suggesting we discard the legal fiction of “guilty property” theory in favor of a rebuttable presumption presented at a predeprivation due process hearing that any forfeiture, whether civil or criminal, be treated as punitive and therefore subject to appropriate due process requirements and excessive fines challenges. If the government fails to return property to an innocent owner, retains more property than required to compensate the government, fails to return property held to be used as evidence, or fails to promptly return seized property in the same condition to criminal defendants whom the government fails to prosecute or whom the jury acquits, the government should be responsible for paying just compensation for a taking under the Fifth Amendment. Any fines or civil penalties associated with a compensatory forfeiture such as the tax forfeiture in Tyler v. Hennepin County will be subject to an excessive fines challenge if they are beyond the taking of the surplus proceeds over the debt
\u3cem\u3eBrewbaker\u3c/em\u3e and the Undermining of Criminal Antitrust Enforcement
No full textIn United States v. Brewbaker, a Fourth Circuit panel overturned a criminal conviction under § 1 of the Sherman Act, holding that a bid-rigging conspiracy between direct competitors constituted a hybrid “dual distribution” arrangement subject to the rule of reason rather than per se illegality. The court’s rationale rested on the existence of a separate vertical relationship between the parties, even though that relationship served only as consideration for the horizontal agreement to rig bids.
This Comment argues that Brewbaker rests on three doctrinal errors: misclassifying established bid-rigging tactics as a “new” restraint simply because the payoff took a vertical form; prioritizing the parties’ broader business relationship over the horizontal nature of the challenged conduct; and finding potential procompetitive justifications based on a faulty “dual distribution” categorization. Because the Department of Justice Antitrust Division only pursues criminal charges for per se violations, Brewbaker creates a roadmap for conspirators to structure schemes with “vertical” payoffs as insurance against criminal liability, thereby threatening the integrity of government procurement, which relies on competitive bidding to safeguard against fraud and waste.
The Fourth Circuit’s reversal of Brewbaker—the Antitrust Division’s only criminal trial victory from 2020 to 2023—has implications that extend beyond doctrine. As the per se rule erodes and criminal enforcement correspondingly shrinks, the Antitrust Division must vigilantly defend what remains. Ultimately, this Comment urges sister circuits to reject Brewbaker’s flawed reasoning and calls on the Supreme Court to intervene if a circuit split emerges to make plain that bid-rigging, however dressed up, remains immune from the broader shift toward the rule of reason
Beyond Judicial Dialogue: Reference to Domestic Law by the Inter–American Court of Human Rights
No full textThe recent freeze of U.S. funding to the Inter–American Commission on Human Rights serves as a reminder of how fragile the Inter–American System of Human Rights truly is. The effectiveness of the Inter–American institutions largely depends on their legitimacy in the eyes of the member states. This article argues how the legitimacy of the Inter–American Court can be enhanced by the language used in its judgments. The paper focuses on how references to domestic law in the case–law of the Inter–American Court can persuade states to comply with its decisions. Citations transcend the much–discussed judicial dialogue since they also reference national constitutions and legislation. At times, the Court searches for general principles of international law or subsequent practice of states relevant to the interpretation of treaties. More often, the Court merely seeks to legitimize itself and persuade member states. In either case, legitimacy is not enhanced by mere reference to national law but by an accurate invocation of it. The present paper critiques methodological problems of the practice of the Inter–American Court and presents some suggestions on how to increase its persuasiveness. The discussion will refer to the role of consensus in the regional human rights system, the countries and sources that should be cited, and the usefulness of expert witnesses and amicus curiae in finding domestic sources, among other proposals
Tracing the Truth: The Case for the United States to Adopt EU-Style Supply Chain Transparency in Global High-Risk Industries
No full textHave you ever looked in your closet and wondered where your clothing came from? Or stared into the black mirror of your phone and questioned how it was made? Certainly, you know where you bought it, but are you sure of where it was before then? Unless you sew your own clothes or communicate by carrier pigeon, these questions may not have crossed your mind. However, I urge everyone to look around their home—you will find objects with questionable origins. This shift has brought increased focus to supply chains, elevating transparency as a critical element of corporate environmental, social, and governance (ESG) practices. While many countries have begun to recognize the importance of supply chain transparency, their approaches often diverge sharply. The most notable differences can be seen between the United States and the European Union. This Note argues that the EU’s guidelines to supply chain transparency establishes a superior approach for ensuring corporate accountability and ending greenwashing in global supply chains. Through a thorough comparative analysis, this Note examines how the EU’s stricter approach provides for superior risk mitigation than the U.S.’s more lenient and looser framework. By highlighting the prevalence and importance of supply chain transparency in high-risk sectors, this Note demonstrates the need for the EU’s model as a global standard. Ultimately, an alignment of global standards with the EU’s approach will cultivate corporate accountability, improve stakeholder interests, and ensure sustainable business practices across sectors and borders
The Ethical Governance of Artificial Intelligence: Using the AI Integrative Risk-Based (AIRB) Model to Achieve Compliance Risk Management
Full text linkWhile undeniably powerful, artificial intelligence algorithms also pose significant risks. The ethical, legal, social, and scientific implications of various AI models can be profound, as demonstrated by the subprime mortgage crisis. This crisis, worsened by the unregulated use of derivative algorithms, is a stark reminder of the pivotal role of individual accountability, ethical responsibility, and regulation in preventing future “catastrophic harm.”1 This Article ventures into the uncharted territory of AI ethical governance and aims to advance AI scholarship and address the unresolved issue of ethical compliance management in AI. Employing a risk-based assessment tool is critical for developing regulatory and strategic models to achieve ethical compliance. This Article introduces a novel AI Integrative Risk-Based (AIRB) model that provides a robust approach to conducting AI risk assessments. It sets the stage for future United States regulations that can ensure ethical compliance in domestic and global markets responsive to identified risks. Each step in the model is designed to integrate well-accepted and proven risk-based methodologies, leveraging the strengths of each method at every stage to formulate ethical guardrails to protect the public from AI misapplication, regardless of intentionalit