Issue – 21.3
Sunsets on Constitutionality & Supreme Court Efficiency
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.
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.
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.
Issue – 21.2
The Trouble With Inclusion
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
Class Action Settlement Residue and Cy Pres Awards: Emerging Problems and Practical Solutions
Wilber H. Boies and Latonia Haney Keith
Class action settlements often present the court and parties with the practical problem of disposing of residual funds that remain after distributions to class members. The cy pres doctrine is a well-recognized device that permits the court to designate suitable organizations to receive such funds. Recently, academics, judges, practitioners, and professional objectors have mounted a multi-faceted attack on this device, ranging from constitutional and ethical concerns to appeals challenging specific awards. This Article first describes the use of cy pres awards in class action settlements and explains why the constitutional, statutory, and ethical objections are unfounded. This Article then addresses other concerns that have been raised about particular awards by suggesting a principled and practical approach to cy pres awards. Finally, this Article explains why public interest and legal services organizations—organizations focused on providing access to the justice system for disenfranchised individuals—are appropriate cy pres recipients and avoid many of the problems raised by other potential recipients.
Are Mothers Hazardous to Their Children’s Health?: Law, Culture, and the Framing of Risk
Linda C. Fentiman
This Article examines the psychosocial processes of risk construction and explores how these processes intersect with core principles of Anglo-American law. It does so by critiquing current cultural and legal perceptions that mothers, especially pregnant women, pose a risk to their children’s health. The Article’s core argument is that during the last four decades, both American society and American law have increasingly come to view mothers as a primary source of risk to children. This intense focus on the threat of maternal harm ignores significant environmental sources of injury, including fathers and other men, as well as exposure to toxic chemicals, dangerous social environments, poverty, and other multi-factorial contributors to childhood harm. The singular focus on mothers as a source of harm to children is scientifically unfounded and reflects persistent racial, gender, and class stereotypes. It also can lead to poor public policy. Risk that is misunderstood is likely to be met with measures that are both misguided and ineffective.
The Article first explicates the landscape of mothers and risk, contrasting common misperceptions with the hard data on children’s health. The Article then considers how and why this distorted view has arisen, relying on new social science research about risk perception and risk communication. Building on that research, the Article examines American legal history and theory, casting a wide net in criminal, environmental, and tort law to demonstrate how core legal doctrine both reflects and reinforces existing sociocultural norms, particularly in the areas of mothers’ responsibility for children’s health. The Article urges a reengagement with the precautionary principle, based on solid scientific evidence, to improve the health of all of America’s children.
Since 2008, the brutal Central American gang MS-13 has perpetrated numerous juvenile sex trafficking schemes throughout the Washington, D.C. metropolitan area. Investigation and prosecution of these cases is challenging due to MS-13’s reputation for violence and the unique vulnerabilities of their victims, who are generally runaway girls as young as twelve years old. By facilitating interagency collaboration, improving law enforcement training, and integrating victim services non-governmental organizations (NGOs), federally funded human trafficking task forces are the most promising mechanism for combatting MS-13 juvenile sex trafficking, and human trafficking in general.
Issue – 21.1
Private Funding, Public Housing: The Devil in the Details
Anne Marie Smetak
Public housing, an important component of the social safety net, has long been plagued by insufficient funding. A new federal program seeks to solve the funding challenges by opening public housing to private investment; quite literally, to mortgage public housing in order to save it. Coming, as it does, on the heels of a national foreclosure crisis, this program must be scrutinized carefully, as there is an inherent tension in incentivizing private investors to participate in a public benefit scheme. This Article explains how the new federal program proposes to use public housing developments as collateral. It examines how this use of the private market is a natural extension of the ongoing privatization of federal affordable-housing policy. It argues that the existing public housing funding structure is untenable and that reform is needed. The United States is facing a significant shortage of affordable housing and cannot afford to lose the remaining public housing units. The Article concludes that, conceptually, the private market could be an effective tool to address the long-standing funding challenges. The details of implementation, however, leave much to be desired. The Article identifies areas in which the program should be modified in order to accomplish its stated preservation goals, including protecting against foreclosures, incentivizing preservation, and ensuring tenants have meaningful enforcement mechanisms.
The Accidental Optimist
Corie Rosen Felder
Today, psychologists and researchers have the benefit of statistical models, neuroscience, longitudinal studies, and perhaps most importantly, the new science of positive psychology—all of which are reshaping the way researchers and practitioners think about and address depression.
Lawyers and law students, a notoriously depressive population with unusually high rates of suicide and related ills, have provided fertile soil for some of the most recent depression research. Dr. Martin Seligman, one of the people credited with the invention of positive psychology, studied depressive thinking in law students at the University of Virginia. Two resulting articles established the foundations of the now widely held view that, for some lawyers, depression is perhaps a useful ill and may even be crucial to the success of those who work in judgment-driven fields like law. This Article will explore the findings and interpretations of the University of Virginia study and its impact on the current popular conception of lawyer and law-student psychology.
This Article will argue that the best explanation for the study’s results lies in defensive pessimism, an idea that is consistently overlooked largely because of its counter-intuitive nature. The Article challenges the notion that depressed thinking is necessary for success in the legal field and will explore the idea that defensive pessimists are uniquely situated to succeed—and thrive—in the legal academy.
This Article examines the ubiquitous, multibillion-dollar practice of tipping as a vehicle for race and gender discrimination and as a case study of the role that organizations play in producing and promoting unequal treatment. The unique structure of tipped service encounters provides opportunities and incentives for both customers and servers to discriminate against one another. However, neither customers nor servers are likely to find legal redress for the kinds of discrimination that are most likely to occur in tipped service transactions because many of the same features of the transaction that promote discrimination also stand in the way of legal accountability for the discrimination that results.
Moreover, while tipped service transactions directly involve just the customer and server, they take place within an organizational framework that is created by a third party—the firm that sells to the customer and employs the server. That framework facilitates discriminatory bias in the decisions of customers and servers and encourages the firm to make decisions that reinforce the discriminatory dynamics of the service encounter. Further, the “triangular” structure of the relationship among firm, customer, and server obscures the firm’s role in producing discriminatory outcomes and protects the firm against liability. Close examination of discrimination in tipped service encounters reveals the importance of supporting a newer, structural approach to antidiscrimination law that looks beyond individual decision making.
Branded for Life: The Unconstitutionality of Mandatory and Lifetime Juvenile Sex Offender Registration and Notification
Shannon C. Parker
Recently, sex offender registration laws have been expanded to apply to juveniles, sometimes requiring mandatory or lifetime registration and community notification. Courts have generally upheld these registration and notification requirements, determining that they are administrative rather than punitive procedures. This Note argues that mandatory and lifetime sex offender registration for juveniles violates the Eighth Amendment protection against cruel and unusual punishment. The Supreme Court has developed recent caselaw curbing the constitutionally permissible punishments available to juveniles. Noting the unique developmental characteristics of juveniles, the Court has held that capital and mandatory life without parole sentences violate the Eighth Amendment. Based on this line of cases, this Note argues that juveniles’ developmental characteristics effectively transform registration and notification laws from administrative procedures into punishment, and that, as a punishment, the automatic application and lifetime nature of these laws are unconstitutional. When mandatory and not susceptible to modification, these laws comprise the most severe form of punishment available to juvenile sex offenders. Because the Supreme Court has argued forcefully against mandatory lifetime sentences for juveniles due to juveniles’ high potential for rehabilitation and reduced culpability, such mandatory and life-long sentences for juveniles who have committed non-homicide offenses violate their right against cruel and unusual punishment. Additionally, once juvenile sex offender registration is correctly characterized as punitive, it also becomes susceptible to ex post facto, equal protection, and due process challenges. As an alternative to registration, this Note suggests more effective ways of dealing with juvenile sex offenders that encourage rehabilitation.