1,720,975 research outputs found
Black Lives Matter: Banning Police Lynchings
No full textIn the United States, police officers are granted a license to use lethal force and are subsequently exonerated from personal criminal liability for fatal killings, particularly when the victim is an African American. This Article advances the normative claim that the Court’s death penalty jurisprudence, including the “Cruel and Unusual Punishment” Clause of the Eighth Amendment, protects the victims of police homicides. Further, it contends that the police use of lethal force against African Americans constitutes “lynching”—a State-sponsored act of terror that supports systemic racism. Finally, it posits that the Constitution mandates that the police use of lethal force be abolished—a transformative solution to save Black lives and to achieve equal justice
Game of Thrones: Liberty & Eminent Domain
Full text linkThis Article analyzes the relationship between private property and the government’s power to expropriate it. When it comes to protecting private property from governmental expropriation, our Constitution is conflicted. On the one hand, the right to private property is a foundational principle that defines the American spirit, our history, and our culture. Yet, on the other hand, the Founders adopted the government’s superior authority over private property, that is, eminent domain, for public purpose and with just compensation, via the Takings Clause of the Fifth Amendment. This “private property conundrum” requires us to explore the limits of eminent domain relative to a person’s private property right in themselves, that is, their “persona.” This Article advances the thesis that every person in America possesses a right to the attributes of themselves or “persona,” which is protected against governmental exploitation. It develops that seminal, normative thesis through three tasks: (1) it presents a contemporary conflict between the private property rights of National Collegiate Athletic Association (“NCAA”) athletes and state governments that operate NCAA schools; (2) it argues that eminent domain and the Takings Clause of the Fifth Amendment should not apply to persona rights, particularly name, image, and likeness (“NIL”); and (3) it proposes a model code solution that society, policymakers, and government should adopt to prohibit the use of eminent domain to exploit NIL and other attributes of persona. Consequently, this Article concludes that States that operate NCAA member schools have wrongfully taken, and continue to wrongfully take, student athletes’ right to their persona
Right of Self
Full text linkThe exercise of free will against tyranny is the single principle that defines the American spirit, our history, and our culture. From the American Revolution through the Civil War, the two World Wars, the Civil Rights Movement, and up to today, Americans have embraced the fundamental rights of the individual against wrongful governmental intrusion. This is reflected in our foundational principles, including the Magna Carta, the Bill of Rights to the United States Constitution, the Reconstruction Amendments, the Nineteenth Amendment, and, more recently, in the Supreme Court’s recognition of fundamental individual rights within the Constitution’s penumbras. However, there is no unifying term or concept for this moving force that has guided our constitutional development.
This Article seeks to redefine our rights to individual liberties through a concept that I call “Right of Self.” It introduces the concept of Right of Self as the legal recognition and protection of a person’s attributes or identity, including one’s labor; name, image, likeness (NIL); and other unequivocal identifiers. It is critical to clearly define this fundamental principle and embrace it as a protected right for several reasons, but mainly because modern technology has increased the number of ways in which the self is being expropriated, for example through the abuse of facial recognition technology. Without Right of Self, the powerful--often with the government’s tacit or direct support--can exploit people without restrictions or compensation. To illustrate this point, this Article analyzes a contemporary case of government-assisted, “private” taking of Right of Self that concerns a particular and vulnerable group of people: college student athletes.
This Article argues that Right of Self is an inherent, fundamental, and constitutionally based right of every person in America. It shows how the failure to embrace and protect that right has resulted in a particular form of inequity, which I call “intergenerational wealth displacement.” This inequity is rooted in race, gender, status, age, and class differences. To redress it, this Article proposes a model code that policymakers should adopt to recognize Right of Self as a fundamental right and to broadly apply it to protect people from the exploitation of their name, image, and likeness
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Involuntary heroes ::Hurricane Katrina's impact on civil liberties /
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Juvenile Justice & Diminished Criminal Culpability
Full text linkWhen regulating the bad, albeit illegal, choices made by minors, the law is conflicted. On the one hand, we have a clear national policy to ensure the safety of and to promote the positive development of our young people, yet we simultaneously criminalize minors who make bad choices. This conundrum raises a quintessential jurisprudential flaw in our legal system: We lack a unifying, overarching principle that guides the law’s relationship with minors. In a companion piece, I pose and explore such a unifying principle, which I coin as the “best interest of the minor” standard (“BIMS”). Consequently, this Article applies that standard to a contemporary legal problem that is plaguing our society: the negative effects of the “status” crime of minors in the simple, non-violent possession of marijuana. It posits the thesis that the offense of minors in the simple, non-violent possession of marijuana should be decriminalized. Concurrently, we should redirect our resources to promote abstention, treat the negative impacts of drug abuse, and promote positive, healthy alternatives to drug abuse
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Game of Thrones: Liberty & Eminent Domain
No full textThis Article analyzes the relationship between private property and the government’s power to expropriate it. When it comes to protecting private property from governmental expropriation, our Constitution is conflicted. On the one hand, the right to private property is a foundational principle that defines the American spirit, our history, and our culture. Yet, on the other hand, the Founders adopted the government’s superior authority over private property, that is, eminent domain, for public purpose and with just compensation, via the Takings Clause of the Fifth Amendment. This “private property conundrum” requires us to explore the limits of eminent domain relative to a person’s private property right in themselves, that is, their “persona.” This Article advances the thesis that every person in America possesses a right to the attributes of themselves or “persona,” which is protected against governmental exploitation. It develops that seminal, normative thesis through three tasks: (1) it presents a contemporary conflict between the private property rights of National Collegiate Athletic Association (“NCAA”) athletes and state governments that operate NCAA schools; (2) it argues that eminent domain and the Takings Clause of the Fifth Amendment should not apply to persona rights, particularly name, image, and likeness (“NIL”); and (3) it proposes a model code solution that society, policymakers, and government should adopt to prohibit the use of eminent domain to exploit NIL and other attributes of persona. Consequently, this Article concludes that States that operate NCAA member schools have wrongfully taken, and continue to wrongfully take, student athletes’ right to their persona
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