Georgia State University law review最新文献

{"title":"The Rise of Zero Tolerance and the Demise of Family","authors":"Mariela Olivares","doi":"10.2139/ssrn.3583857","DOIUrl":"https://doi.org/10.2139/ssrn.3583857","url":null,"abstract":"This article explores the intersection of immigration law and family law and argues that the current regime dedicated to decimating immigrant families in the United States does not comport with the history and spirit of immigration law and policy. Policies shifting away from family unity and towards an inhumane treatment of immigrant families is anchored in the political rhetoric that normalizes the oppression of immigrants. By characterizing immigrants as nonhuman–even \"animals,\"","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"36 1","pages":"287"},"PeriodicalIF":0.0,"publicationDate":"2020-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42556895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Three Transformative Ideals to Build a Better Crime Lab","authors":"Nicole B. Casarez, S. Thompson","doi":"10.2139/SSRN.3251004","DOIUrl":"https://doi.org/10.2139/SSRN.3251004","url":null,"abstract":"This Article proposes that policy makers should consider establishing their jurisdiction’s crime laboratories as government corporations independent of law enforcement as a means of improving their quality and efficiency. Simply building new buildings or seeking accreditation will not solve the endemic problems that crime laboratories have faced. Rather, we propose that crime laboratories be restructured with a new organizational framework comparable to the Houston Forensic Science Center's (HFSC) status as a local government corporation (LGC), which has proven to be conducive to creating a new institutional culture. From our experience with the HFSC, we also believe that crime laboratories are well-advised to embrace the three ideals that have helped transform the HFSC: transparency, efficiency, and quality. These ideals do not exist independently of each other, rather each ideal overlaps with and reinforces the others. By providing concrete examples of the three transformative ideals in operation, this Article will illustrate how even a struggling laboratory can become high-functioning in a few short years without large public expenditures. Most importantly, in our view this success can be replicated. To determine the extent to which crime laboratories make documents pertaining to their internal operations public, we undertook an empirical study of crime laboratory transparency by researching the websites of local, state, and federal laboratories. The study tabulates the number of laboratories that provide online disclosure of critical documents, such as standard operating procedures, backlogs, and corrective action reports (also known as incident reports). Part I of the Article reports the findings of the study and provides a critical analysis of the results. Part II describes the HFSC’s corporate governance structure. This section demonstrates how the hybrid model of a public agency organized as a corporation offers a distinct set of advantages consistent with democratic principles, while also incorporating the efficiencies of a private-sector corporation. This part of the paper also addresses the organizational advantages of making a forensic laboratory independent of a law enforcement agency. However, we discuss advantages as viewed from the perspective of a laboratory director, rather than revisiting concerns about motivational and cognitive bias. Finally, Part III of the Article addresses the three transformative ideals — transparency, efficiency, and quality — that have guided the HFSC’s operations and have proved critical to its success. This section of the Article provides concrete examples to illustrate how the ideals can be put into action by laboratory administrators. This part of the paper demonstrates that, at least with regard to HFSC, the establishment of a crime laboratory as an independent LGC has generated benefits for law enforcement and crime survivors as well as defendants, the judiciary, and jail administrators. Indeed, b","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"34 1","pages":"1007"},"PeriodicalIF":0.0,"publicationDate":"2018-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46904751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Efficacy of Cybersecurity Regulation","authors":"D. Thaw","doi":"10.2139/SSRN.2241838","DOIUrl":"https://doi.org/10.2139/SSRN.2241838","url":null,"abstract":"Cybersecurity regulation presents an interesting quandary where, because private entities possess the best information about threats and defenses, legislatures do – and should – deliberately encode regulatory capture into the rulemaking process. This relatively uncommon approach to administrative law, which I describe as Management-Based Regulatory Delegation, involves the combination of two legislative approaches to engaging private entities' expertise. This Article explores the wisdom of those choices by comparing the efficacy of such private sector engaged regulation with that of a more traditional, directive mode of regulating cybersecurity adopted by the state legislatures. My analysis suggests that a blend of these two modes of regulating is superior to either method alone.Federal regulation of cybersecurity through HIPAA, Gramm-Leach-Bliley, and the Federal Trade Commission's enforcement heavily involves private organizations subject to the regulation in the establishment of the actual practices and standards to which those organizations are held. By contrast, the state cybersecurity laws – a form of disclosure-based regulation that de facto achieves directive regulation – detail specific standards developed without industry input.This Article compares the efficacy of those two modes of regulating using a mixed-methods empirical approach. Qualitative data based on interviews with Chief Information Security Officers (CISOs) at leading multinational corporations details the practical effects of how regulation drives cybersecurity practices. Analysis of quantitative data describing security breach incidents reveals that a blend of the two types of regulation is substantially more effective at preventing such incidents than is either method alone. These results provide insight into ways to mitigate the risks of deliberate regulatory capture while still leveraging the unique knowledge private entities have about what are the most salient cybersecurity threats and defenses.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"30 1","pages":"14710"},"PeriodicalIF":0.0,"publicationDate":"2013-10-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68023218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Hovering Too Close: The Ramifications of Helicopter Parenting in Higher Education","authors":"Kathleen Elliott Vinson","doi":"10.2139/SSRN.1982763","DOIUrl":"https://doi.org/10.2139/SSRN.1982763","url":null,"abstract":"“They are needy, overanxious and sometimes plain pesky – and schools at every level are trying to find ways to deal with them. No, not students. Parents – specifically parents of today’s ‘millennial generation’ who, many educators are discovering, can’t let their kids go.” (Valerie Strauss, Putting Parents in Their Place: Outside Class, Wash. Post, March 21, 2006.) Some parents, called “helicopter parents” for constantly hovering over their children, are now making higher institutions their landing pads. They hover from the prospective admissions stage to graduation and the job market beyond – contacting presidents of universities, deans, and professors, disputing their child’s grade; requesting an extension for their child; complaining their child does not receive as much praise as the parent would like; completing assignments for their child; requesting notification of grades their child received; and even attending job fairs and interviews with their child. They are intervening in their children’s higher education in increased frequency and intensity, presenting challenges socially, pedagogically, and legally. This article explores the phenomenon of helicopter parenting hovering over higher education institutions and the possible implications that may affect students’ learning, teaching, grading, curriculum, future employers, and the law itself. Finally, the article provides recommendations to help strike a balance between the changing rights, roles, and responsibilities of higher education institutions and their students’ parents.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"09 1","pages":"423"},"PeriodicalIF":0.0,"publicationDate":"2013-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1982763","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67828111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Commerce, Death Panels and Broccoli: Or Why the Activity/Inactivity Distinction in the Health Care Case Was Really about the Right to Bodily Integrity","authors":"Michael C. Dorf","doi":"10.2139/ssrn.2225883","DOIUrl":"https://doi.org/10.2139/ssrn.2225883","url":null,"abstract":"In National Federation of Independent Business v. Sibelius, five Justices of the United States Supreme Court opined that the Commerce Clause does not authorize Congress to regulate “inactivity.” In thus giving effect to the intuition that laws compelling activity impose a more serious burden on the individual than do laws forbidding activity, these Justices mistakenly imported a libertarian principle into the Court’s federalism jurisprudence. Indeed, the intuition is not even true in all individual rights cases. Nonetheless, in the aim of understanding the logic behind the ruling, this Lecture explains how affirmative mandates that infringe the substantive due process right to bodily integrity can be more intrusive than prohibitions. In so doing, it draws connections between the political charge that the health care law would establish “death panels” and the effective use of the hypothetical fear that upholding the law’s so-called individual mandate would permit the government to require people to eat broccoli.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"29 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68005975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contract Breaches and the Criminal/Civil Divide: An Inter-Common Law Analysis","authors":"M. Bedi","doi":"10.2139/SSRN.1793421","DOIUrl":"https://doi.org/10.2139/SSRN.1793421","url":null,"abstract":"Scholars have long debated why certain common law breaches in American jurisprudence receive criminal punishment (imprisonment) while others only receive civil sanctions (monetary damages). Scholars like Richard Posner and Guido Calabresi have used economic-based models and the notion of efficiency to explain why torts only receive civil sanctions but crimes receive criminal punishment. Others like John Coffee and Paul Robinson have questioned the explanatory power of these models. Instead, they have focused on the moral difference between torts and crimes. Simply put, a crime’s intentional nature makes it morally worse than the carelessness typified by tortious activity. Interestingly, scholars on both sides of the debate have largely neglected to include contract breaches - a significant part of common law - into their models. Like torts, these breaches also only receive civil sanctions. What explains the similar treatment? This Article makes an original contribution to the literature by systematically introducing contract breaches into the broader criminal/civil debate. It employs the aforementioned economic and moral-based models in an effort to understand the treatment of contract breaches. The economic model, and its focus on efficiency, predictably explains why these breaches only receive civil sanctions. The moral-based model stumbles here. Its focus on intent suggests that a contract breach - as intentional conduct - also deserves moral blame and thus criminal punishment. What is missing from this model is recognizing the unique nature of the underlying responsibility in a contract breach and specifically the difference between a “voluntary obligation” and a “non-voluntary obligation.” This Article takes the innovative step of introducing this distinction into the larger criminal/civil debate and using it to conclude that the moral-based and economic approaches can be integrated into a unified model.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"28 1","pages":"10"},"PeriodicalIF":0.0,"publicationDate":"2012-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1793421","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67747369","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should","authors":"W. Ball","doi":"10.2139/SSRN.1871427","DOIUrl":"https://doi.org/10.2139/SSRN.1871427","url":null,"abstract":"California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will divert some sentenced offenders away from state facilities towards county facilities. The plan faces opposition from county officials, who argue that the state is pushing its problem onto the counties.But what if the counties are actually responsible for state prison overcrowding? I argue that California’s prison overcrowding is due in large part to county decisions about how to deal with crime. Using data from 2000-2009, I will show that California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates. Viewed this way, the state is simply returning the problem to its source, and forcing counties to pay for their sentencing decisions.The contribution the Article makes, then, is twofold. First, it suggests that incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime. Counties can and do make different choices about how to respond to violent crime, including the extent to which they use state prison. Second, the Article demonstrates why localities are crucial—and critically underexamined—contributors to state prison populations. Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers). Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies. State officials must take these local differences into account, and create incentives for counties to behave differently. The problem is that it is difficult to distinguish between justifiable, crime-driven incarceration and optional, policy-driven incarceration. I propose a new metric for distinguishing between these two types of incarceration, one which defines justified incarceration in terms of violent crime. This would allow the state to manage local usage of state prison resources without either penalizing crime-ridden areas or rewarding prison-happy ones. This Article is the first of two articles dealing with the state/county prison relationship. While this Article quantifies the ways in which the extent of local prison admissions is not necessarily a function of the violent crime rate, a second Article will examine whether, given these differences, it makes sense for the state to subsidize county commitments to prison.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"20 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2011-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67766841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Negligence, Responsibility, and the Clumsy Samaritan: Is There a Fairness Rationale for the Good Samaritan Immunity?","authors":"Dov A. Waisman","doi":"10.2139/SSRN.2009473","DOIUrl":"https://doi.org/10.2139/SSRN.2009473","url":null,"abstract":"The Good Samaritan immunity has been roundly criticized for failing in its instrumental goal of encouraging physicians and laypersons to volunteer assistance in emergencies. Yet in the half century since its inception, the immunity has been adopted in one form or another by all fifty states and shows no sign of disappearing any time soon. This Article represents the first serious attempt in the literature to evaluate a rarely-discussed non-instrumental rationale for the immunity which may explain its persistence: that it is unfair to impose negligence liability on the clumsy Samaritan, i.e., someone who, without obligation, altruistically comes to the aid of another in an emergency, but does so ineptly. Based on a close examination of different types of voluntary rescue cases, I conclude that fairness does require an immunity, but only in narrow circumstances: where a lay rescuer’s act of ordinary negligence leaves the victim no worse off than she would have been absent the intervention (i.e., where the gravamen of the action is that a lay rescuer negligently failed to alleviate the pre-existing peril). Outside of these circumstances, principles of fairness support holding the clumsy Samaritan liable for negligence in performing the rescue. This, I argue, has an important and unappreciated implication for negligence theory. My analysis presents a novel challenge to the view of corrective justice theorists like Ernest Weinrib, who contend that the duty to repair an injury caused by negligence rests on the culpable disrespect the injurer evinces in failing to act with due care. Because, in the paradigm case of voluntary rescue, the rescuer acts selflessly and out of a profound respect for the physical integrity of the imperiled person, the intuition that liability may nevertheless be appropriate if the rescuer fails to exercise reasonable care supports a competing view of the moral basis for negligence liability. The case of the clumsy Samaritan shows in a compelling way that the moral basis for negligence liability has to be the injurer’s moral responsibility for the consequences of her dangerous, even if non-culpable, conduct.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"29 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2009473","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67847600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution","authors":"David Rossman","doi":"10.2139/SSRN.1262283","DOIUrl":"https://doi.org/10.2139/SSRN.1262283","url":null,"abstract":"Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future. The Court has used three methods to create these rules. One looks to prejudice, and requires an evaluation at the end of the trial process to see if what happened had an adverse effect on the result. Another method creates rules that depend on the reaction of someone else, typically the defendant, to trigger the violation. The last way the Court has created conditional rules is to aggregate the time frame in which to make a judgment about the legitimacy of the actor's behavior, so that it must await further behavior by the same actor or someone exercising governmental power toward the same end. These rules superficially resemble applications of the harmless error doctrine or examples of waivers of rights, but they differ in fundamental ways. They are far less protective of the rights of defendants and they send a much different message about the limits of government power to those who control the criminal justice system. They create confusion, fail to guide the behavior of the government actors whose power the Constitution limits, stand as barriers to institutional efforts at ex ante prevention, mislead the public about the scope of their rights, and often do not take into account any of the symbolic values that lay behind the provisions of the Constitution governing the state's power to use a criminal sanction.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"26 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2008-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68153940","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Losing the Law War: The Bush Administration's Strategic Errors","authors":"John O. McGinnis","doi":"10.2139/SSRN.1010354","DOIUrl":"https://doi.org/10.2139/SSRN.1010354","url":null,"abstract":"This short essay analyzes the failures of the Bush's administration legal strategy in the war on terror. The many mistakes had common roots. The first was an ideological focus on bolstering executive power and a consequent lack of pragmatic flexibility in choosing tactics that would maximize the chances of gaining public and judicial acceptance of its framework for detention, interrogation and trial of terrorists as well as surveillance of individuals resident in America. The administration repeatedly failed to recognize that reliance on executive authority alone entailed a high risk of defeat at the hands of the Court. Second, the administration radically underestimated the magnitude of the risk that the Court would curb the President's discretion, because it misunderstood the changed legal environment for litigation in the twenty-first century. Every aspect of American life has been increasingly subject to court made rules. As a result of this trend even discretion in the war on terror would likely be seen through the prism of legalism that applies to domestic criminal law. The third systematic error was a failure to recognize that all administrations tend to lose power as they age, and wars run a high risk of exacerbating that loss as they become progressively less popular. Of course, the scandals at Abu Ghrab and the more general lack of success in Iraq could not have been predicted. But an administration's legal high command must choose strategies that take account of the worst possible outcomes. As a result, the administration would have been well advised to take every step to bolster its legal position as early as practicable. It could have secured from Congress framework legislation for detention, military tribunals, surveillance, and even interrogation. Because citizens are generally most supportive of an administration at the beginning of a conflict, the terms of trade of the administration with Congress would have been likely favorable. This strategy would have avoided delays in war crimes trials. Perhaps more importantly, it would have avoided the appearance of lawlessness which has sapped support at home and abroad for the administration's reasonable objectives in its war against terrorists.","PeriodicalId":81326,"journal":{"name":"Georgia State University law review","volume":"25 1","pages":"15341"},"PeriodicalIF":0.0,"publicationDate":"2007-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68124377","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}