Current Issue – 21.3

Sunsets on Constitutionality & Supreme Court Efficiency
Michael Gentithes

In the Supreme Court’s most recent terms, the Justices have openly suggested that there might be a temporal limit to the constitutionality of several government policies at bar. Most notably in Voting Rights Act and educational affirmative action litigation, Justices from both sides of the political spectrum have revealed a yearning for some meaningful conclusion to government policies that do not seem to comfortably fit within the Constitution’s strictures on a permanent basis. This desire is thus a notable refrain in constitutional jurisprudence.

This Article presents a unique solution to the Court’s concern—judicially enforced sunsets on the constitutionality of a government policy. Such sunsets can fulfill the Justices’ collective desire while advancing constitutional jurisprudence in a broader spirit of cautious empiricism. The Article fills a gap in the existing scholarship on legal sunsets, building upon the work of other authors that have focused on sunsets in the legislative context. Furthermore, the Article advances a novel justification for judicial sunsets by highlighting the ways in which Supreme Court decision-making would become more efficient if such sunsets were utilized. The Article argues that judicially enforced sunsets on the constitutionality of government policies can reduce the externalities endemic to the relitigation of identical topics that has beset the Supreme Court in recent years. The Article pushes the analysis of sunsets further still by considering their normative strengths and weaknesses, including their logical viability in a coherent conception of constitutional law.

Victims’ Rights in the Military: Empowering Sexual Assault Victims with a Meaningful DoD Victims’ Bill of Rights
Major Greg J. Thompson

The Department of Defense (DoD) has spent decades attempting to formulate a meaningful policy for victims’ rights in the military courts-martial system. The result has been less than helpful to the victims, as the scales of justice have weighed heavily in favor of the accused. Although current DoD policy affords victims’ rights, they lack specific actionable meaning. Up until December 26, 2013, with the passage of the Fiscal Year 2014 National Defense Authorization Act (FY14 NDAA), DoD victims’ rights were not written into the Manual for Courts-Martial; they did not give victims standing to make a statement to the court; they did not give victims power to deny interviews with defense attorneys; they did not give victims a right to be heard at many proceedings; and as a result, in many cases, these so-called victims’ rights did not afford victims the day in court that they not only deserved, but that justice required. Although the FY14 NDAA provides measures to remedy this imbalance, it does not go far enough.

This article proposes a set of legal rights that would move the DoD further along on a path to correct the imbalance a victim suffers when injected into the military courts-martial process. These proposed rights have all been recognized in either state constitutions, legal precedent, or legislative act. Although these proposed victim rights cut against time honored DoD tradition, they are necessary, as the media continues to identify that the military system, while fair, has room for improvement, especially when it comes to handling sexual assault cases and particularly in addressing the fact that victims in the military system feel they lack power and a voice. This set of proposed legal rights offers that back to them, while ensuring the constitutional rights of the accused are protected.

The Senseless Census: An Administrative Challenge to Prison-Based Gerrymandering
Sean Suber

Every ten years the United States Census Bureau relies on the “usual residence rule” to enumerate prisoners as “residents” of the prisons in which they are incarcerated. With this information, the Census Bureau provides states and localities with the requisite data to inflate the population count of legislative districts where prisons are located. This practice, known as prison-based gerrymandering, distorts our democratic process by increasing the political influence and voting power of districts where prisons are located. This Note focuses on challenging the Census Bureau’s reliance on the usual residence rule as a justification for enumerating prisoners in prisons during the census. This Note analyzes the Bureau’s justifications for its interpretation of the usual residence rule and argues that the Bureau’s adherence to this interpretation no longer serves as a rational or reasonable means of discharging its constitutional and legislative mandate.

Reforming the Student Debt Market: Income-Related Repayment Plans or Risk-Based Loans?
Alexander Yi

This Note examines the income-related repayment plans that have been promoted in some circles as an alternative to the current student debt infrastructure. It argues that these types of repayment plans have major flaws and that introducing risk assessment in distributing student loans is a preferable policy solution.

This Note begins by looking into the current problems stemming from the current student debt system, which provides easy access to loans but sets stringent requirements in their discharge. It then discusses the various income-related repayment programs that have been adopted at the federal and proposed at the state level, and maintains that they may produce perverse consequences. Rather than an income-related program, this Note proposes its own solution: (1) distributing loans based on a borrower’s risk profile and (2) setting a period in which student loans cannot be discharged. It argues this proposal is superior to an income-related plan because it leads to a sustainable student debt market that improves the lives of its participants.