Catholic University Law Review最新文献

{"title":"At the Intersection of Due Process and Equal Protection: Expanding the Range of Protected Interests","authors":"V. Samar","doi":"10.2139/ssrn.3206326","DOIUrl":"https://doi.org/10.2139/ssrn.3206326","url":null,"abstract":"","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/ssrn.3206326","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68574120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Easing ‘The Burden of the Brutalized’: Applying Bystander Intervention Training to Corporate Conduct","authors":"Jena Martin","doi":"10.2139/SSRN.3135490","DOIUrl":"https://doi.org/10.2139/SSRN.3135490","url":null,"abstract":"The last few years have borne witness to a shift regarding how to address issues of oppression and social injustice. Across many different advocacy points - from police brutality to sexual violence - there seems to be a consensus that simply engaging the oppressor or the victim is not enough to affect real social change. The consensus itself is not new: it has been at the heart of many social justice movements over the years. However, what is new is the explicit evocation of the bystander within this framework. Too often, in conversations on conflicts generally (and negative human rights impact specifically), bystanders have been relegated to the sidelines, with no defined, specific role to play and no discussion within the larger narrative. Now, however, -- through the use of bystander intervention training -- these actors are taking on a more prominent role. \u0000 \u0000In previous articles, I have stated that the rhetoric and posture that transnational corporations (TNCs) maintain vis-a-vis human rights impacts is that of a bystander. Frequently, when human rights abuses occur, TNCs find themselves in the position of having to acknowledge their presence in the area of the underlying conflict, while profusely maintaining that none of their actions caused the harm against the community. Building off this prior work, this article seeks to answer the following question: are there lessons that can be learned from bystander intervention training in other contexts, that can be used for the benefits of TNCs within the field of business and human rights? I conclude that what is lacking in the current discourse on corporate policies regarding addressing negative human rights impacts is an articulation regarding when, and under what circumstances, it is appropriate for corporations to intervene in negative human rights disputes. This goes beyond the current proposals for human rights due diligence frameworks in that, rather than merely undergoing an assessment and then reporting this information out (as is required by most current legal frameworks that address business and human rights reporting) this would help corporations – informed by a bystander intervention framework – to engage with either the oppressor or the oppressed in a way that directly minimizes human rights abuses.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2018-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45589150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Partisan Gerrymandering and the Illusion of Unfairness","authors":"Jacob Eisler","doi":"10.2139/SSRN.2993876","DOIUrl":"https://doi.org/10.2139/SSRN.2993876","url":null,"abstract":"Partisan gerrymandering is frequently condemned for distorting democracy and causing unfair representation, and many reformers have called upon federal courts to prohibit the practice. However, the judiciary has struggled to advance a coherent approach to partisan gerrymandering. Conservative justices have argued the practice raises a non-justiciable political question, and the remainder of the bench has failed to reach any agreement on the right test. This Article argues that courts have struggled with the law because the threat from partisan gerrymandering is illusory. Parties are responsive to external conditions, including the composition of legislative districts. Therefore, voters, candidates, and party leaders can adapt to compete for the constituencies of redrawn districts. When partisan gerrymandering appears harmful, the true culprit is the fracturing of the electorate into factions due to voters’ political preferences. The appropriate forum for resolving such substantive disputes among citizens is democratic contestation, not rights-based judicial intervention. Subsequently, reformers’ hope that eliminating partisan gerrymandering will fix American democracy is misplaced. This divergence between the real character of partisan gerrymandering and its treatment by the legal academy is responsible for the lack of clarity in the jurisprudence. To support this conclusion, this Article draws on social science analysis of political behavior to offer a unified perspective on party affiliation, voter preference, and constitutional rights.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48580490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Oversight of Oversight: A Proposal for More Effective FOIA Reform","authors":"Aram A. Gavoor, Daniel Miktus","doi":"10.2139/SSRN.2878410","DOIUrl":"https://doi.org/10.2139/SSRN.2878410","url":null,"abstract":"The D.C. Circuit’s 2015 opinion, Cause of Action v. Federal Trade Commission, authored by its Chief Judge, Merrick Garland, is a landmark pro-transparency opinion that held an executive branch agency accountable for misreading two Freedom of Information Act fee provisions. In addition to its contribution to the news media and public interest FOIA requester communities, the opinion evidences a pervasive methodological flaw in the congressional approach to FOIA reform. The FOIA statute is inefficient because it invites and requires agency interpretation of key provisions, which is inconsistent with its non-deferential de novo standard of review. Given the natural disincentives executive branch agencies have to comply with the oversight and transparency efforts of news media and public interest actors, agencies exploit FOIA in a manner that is contrary to its public policy goals. This statutory problem survives the FOIA Improvement Act of 2016. This essay makes the case that Congress should approach FOIA reform with greater legislative precision to better achieve its public policy goals. FOIA is unique among legislative enactments because it is an omnibus statute of transparency and oversight, organic to no agency, and one that creates powerful disincentives for agency compliance with its goals. Its de novo standard of review conveys an absence of deference that is in tension with its provisions that delegate agency interpretative authority.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2878410","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68412316","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fulfilling the Promise of Roe: A Pathway for Meaningful Pre-Abortion Consultation","authors":"T. Molony","doi":"10.2139/SSRN.2727190","DOIUrl":"https://doi.org/10.2139/SSRN.2727190","url":null,"abstract":"According to a 2014 poll, nearly two-thirds of Americans believe that the decision whether to have an abortion is one that should be left to a woman and her doctor. And this view is not surprising, for it is the one reflected in Roe v. Wade, which contemplated that an abortion decision would follow a robust discussion between a woman and her physician. An ob/gyn who provides a woman with regular care likely is best equipped to offer this type of consultation, but most ob/gyns do not perform abortions. Therefore, a physician who provides abortion services to a woman often will encounter her solely for that purpose, and it is unrealistic to expect that a simple intake form and a few questions will provide the depth of knowledge necessary for meaningful, patient-specific guidance. In light of these facts and consistent with the importance the Affordable Care Act places on primary care physicians in managing a person’s healthcare, this Article suggests that States adopt measures to facilitate consultation by a woman considering abortion with a physician whom she has chosen to provide her comprehensive care. The Article proposes model legislation designed both to achieve this end and to respect a woman’s constitutional rights.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68276342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Lost Due Process Doctrines","authors":"Larkin, J. Paul","doi":"10.2139/SSRN.2649958","DOIUrl":"https://doi.org/10.2139/SSRN.2649958","url":null,"abstract":"In order to render manageable the doctrinal development of the Due Process Clause, the Supreme Court over the last fifty years has attempted to fit its decisions into one of two distinct categories: procedural requirements that the government must satisfy before depriving someone of life, liberty, or property, and substantive limitations on exactly what deprivations the government may accomplish. Unfortunately, neither the law nor life can be so easily classified. The Court has decided numerous cases that defy its recent attempts to divide Gaul into two parts, not three (or more). Several due process doctrines seem to have been isolated from the main body of law that the Court has developed. Some could be at risk of being eliminated by falling into that collection of precedents often described as no longer being \"good law.\" But not all of them will suffer that fate, and the reasons why they will and should remain vibrant are relevant to the rationale for the other doctrines and help explain why they should not be set adrift.Part I of this article will describe the two-fold divide between procedural requirements and substantive limitations that has dominated the discussion of the Due Process Clause. Part II will consider a few categories of due process case law that the Court has not attempted to fit into one or the other of those categories. Part III will discuss the provenance of the Magna Carta, a thirteenth century charter of liberties that later gave birth to the Due Process Clauses in our Constitution. Part IV will wrap up by considering whether there is a home in the Constitution for the Court’s Lost Due Process Decisions. In particular, Part IV will ask whether Magna Carta provides that home and can serve as a base for the ongoing development of constitutional law.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2015-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68238819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Abolish Anonymous Reporting to Child Abuse Hotlines","authors":"Dale Margolin Cecka","doi":"10.31228/osf.io/62nze","DOIUrl":"https://doi.org/10.31228/osf.io/62nze","url":null,"abstract":"All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous reporting overburdens the system, causing us to overlook some child maltreatment that can be, and is otherwise, addressed through confidential and mandatory reporting. Given the severity of the rights and lives at stake, it is time to abolish anonymous public reporting of suspected child maltreatment.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69639414","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Prosecutor Prince: Misconduct, Accountability and a Modest Proposal","authors":"H. Caldwell","doi":"10.2139/SSRN.2239346","DOIUrl":"https://doi.org/10.2139/SSRN.2239346","url":null,"abstract":"This article will undertake an ambitious agenda, composed of eight sections: (1) setting forth the proper role of prosecutors; (2) examining the prevalence and consequences of prosecutorial misconduct; (3) identifying the primary types of prosecutorial misconduct; (4) surveying the efforts of all jurisdictions in this regard; (5) dissecting the inadequacies of current practices in coping with the problem; (6) critiquing the proposals set forth by others regarding prosecutorial abuse; (7) examining the methodology and effectiveness of independent judicial commissions as a model for commissions regarding prosecutors; and (8) offering our proposal advocating independent commissions to investigate and determine whether prosecutorial misconduct has occurred and, if so, mete out appropriate sanctions.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2013-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68020274","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"You Can’t Go Home Again: Analyzing an Asylum Applicant’s Voluntary Return Trip to His Country of Origin","authors":"Brett C. Rowan","doi":"10.2139/SSRN.3035696","DOIUrl":"https://doi.org/10.2139/SSRN.3035696","url":null,"abstract":"","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68499461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Whistleblowers and Rogues: The Urgent Call for an Affirmative Defense to Corporate Criminal Liability","authors":"Marcia Narine Weldon","doi":"10.2139/ssrn.2028434","DOIUrl":"https://doi.org/10.2139/ssrn.2028434","url":null,"abstract":"Courts hold corporations vicariously liable for the criminal acts of their employees even when those employees have acted contrary to established company policies, explicit employer instructions and without management’s knowledge or ratification. The current legal regime places firms in a quandary - do they rectify the wrongdoing internally and hope that a whistleblower does not report them to the authorities, or do they disclose to the government the fact that rogue employees have violated the law thereby subjecting themselves to high financial penalties, the threat of criminal prosecution, loss of shareholder value, civil suits, suspension of private and public contracts and reputational damage? Corporations must comply and contend with Dodd-Frank whistleblower legislation, which rewards tipsters even if they bypass credible, functioning internal compliance programs; the 2010 UK Bribery Act, which imposes strict liability on companies doing business in the U.K; and the twentieth anniversary of the Federal Sentencing Guidelines used to sentence corporate defendants. With this changing regulatory landscape, it is time to eliminate the current disincentives to optimal investment in compliance. Many academics and even former justice department officials have called for either the abolition of criminal liability or for an affirmative defense. This article raises the bar and proposes an affirmative defense and a presumption against criminal liability for a compliance program that exceeds the current standards and that would be audited by an objective third party free from conflicts of interest or, in the alternative and preferably, pre-certified by the government itself. This defense would level the playing field between corporations and prosecutors, would provide the proper incentives for companies to prevent, detect and disclose criminal activity, and would allow both the private and public sector to allocate their resources more productively.","PeriodicalId":44667,"journal":{"name":"Catholic University Law Review","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2012-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67867520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}