The Curse of the Nation-State: Refugees, Migration, and Security in International Law

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Jill I. Goldenziel. How does international law protect migrants? For the most part, it does not. Of the millions of people who flee persecution, conflict, and poverty each year, international law protects only refugees: those who flee persecution on the basis of religion, race, nationality, political opinion, or membership in a particular social group. The 1951 Convention Relating to the Status of Refugees provides critical protections for minorities that must never be diluted. However, it is insufficient to protect the swarms of migrants landing on the shores of Europe and elsewhere, or to guide states on how to protect them while guarding their own security. This Article argues that states have always revised international law regarding displaced people to protect their own security interests and changing circumstances of displacement. The…
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A Nuclear Threat: Why the Price-Anderson Act Must Be Amended Following Cook v. Rockwell

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Daniel Kolomitz. Disasters such as Fukushima, Three Mile Island, and Chernobyl have raised public awareness of the dangers of nuclear energy. However, despite this risk, nuclear energy supplies twenty percent of the electricity in the United States. Much of this development is due to the Price-Anderson Act (“PAA”). If a nuclear plant exposes a citizen to dangerous radiation that makes the citizen ill or damages his property, the PAA assures that a federal forum will be available to hear the victim’s claim, provides government funds to assure the victim’s compensation, and gives indemnification to the nuclear operator so that it is not exposed to crushing liability. The PAA only applies to “nuclear incidents”: specific types of damages caused by nuclear sources. If any lawsuit alleges that a nuclear incident occurred,…
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Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Tamara Rice Lave. This Article looks critically at the procedural protections American universities give students accused of sexual assault. It begins by situating these policies historically, providing background to Title IX and the different guidelines promulgated by the Department of Education. Next, it presents original research on the procedural protections provided by the fifty flagship state universities. In October 2014, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof, right to an adjudicatory hearing, right to confront and cross examine witnesses, right to counsel, right to silence, and right to appeal. This Article describes findings and then compares them with prior studies. After arguing that state university students are entitled to procedural due process, this Article uses the…
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Exposed: Asking the Wrong Question in Risk Regulation

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Catherine A. O’Neill. Back in 1973, the tuna industry wanted to know how much fish Americans were eating. After asking 7,662 households to record their daily fish intake, the answer came back: people ate fish, but not very often—about once a month. While tuna purveyors mulled what to do with this information, the U.S. Environmental Protection Agency (EPA) borrowed their dataset. EPA used these data to derive a key variable in the equation for calculating people’s exposure to toxic contaminants in the nation’s waters: the fish consumption rate (FCR). This FCR served as the premise for EPA’s initial volley of water quality criteria in 1980 and, subsequently, for water quality standards across the nation. Even today, several states’ water quality standards are based on this FCR, which assumes that people…
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Target Discrimination: Protecting the Second Amendment Rights of Women and Minorities

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Daniel Peabody. In one of the darkest moments of United States jurisprudence, Chief Justice Roger Taney listed a “parade of horribles” that would result if freed African-Americans were considered “citizens.” This list included the idea that “persons of the negro race, who were recognized as citizens in any one State of the Union,” would have the right “to keep and carry arms wherever they went.” The Dred Scott Court considered African-Americans carrying firearms as too much to bear. While the Dred Scott Court sought to limit minorities’ rights to bear arms when defining “citizen,” the Supreme Court must soon consider protecting the rights of minorities to bear arms when defining the word “bear” in the Second Amendment. Full Article 
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State Constitution Perpetuities Provisions: Derivation, Meaning, and Application

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Les Raatz. The Rule Against Perpetuities, over the last decade or so, has attracted greater attention within areas of the estate planning bar. There are interrelated factors that are the primary reasons for this attention. One is the marketing of trusts that are designed to better protect against the ability of creditors of the beneficiaries of a trust to reach assets of the trust to satisfy their claims. Lengthening the period that such assets may remain unvested in beneficiaries in the trusts is touted as enhancing their value and usefulness. The longer period to defer vesting also has beneficial estate tax consequences. If trust property can be held for generations in a trust not subject to the common-law rule requiring the vesting of interests of the trust in the beneficiaries…
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Exploring the Spectrum: How the Law May Advance a Social Movement

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Tiffani Darden. The school-to-prison pipeline too often places young people into a hamster’s spinning wheel. According to the Department of Justice, suspension from school diminishes a student’s chance to graduate from high school and increases a student’s chance at entering the juvenile justice system. The rollercoaster halts only when interrupted by a young person’s confrontation with adult criminal courts. In my opinion, a balanced approach, reconfigured to critique public education alongside youth correctional facilities, will more fully develop our understanding of the problem and assist in crafting holistic solutions. Children should not suffer undue trauma associated with adjudication, the “delinquent” label, and separation from supportive family and community networks. The school-to-prison pipeline literature places a heavy onus upon public schools to reform internal policies—scholars focus heavily on prevention at the…
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Managing Our Blind Spot: The Role of Bias in the School-to-Prison Pipeline

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Laura R. McNeal. For decades, we have witnessed the increased criminalization of our nation’s youth, especially youth of color and students with disabilities, through the implementation of “zero tolerance” policies and overly harsh school disciplinary practices. Instead of improving school safety, these practices have blurred the lines between school discipline and school safety, pushing students out of school and into the juvenile justice system. Perhaps most troubling and relevant are the concerns expressed in the post-Ferguson era regarding allegations of inappropriate and excessive use of force by school police on students. In schools all over the nation, school police carry and use tasers and pepper spray in situations that do not call for this type of weaponry. Every year there is a new series of local news articles highlighting students…
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Dismantling the School-to-Prison Pipeline: Tools for Change

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Jason P. Nance. The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement. Further, it suggests initial strategies aimed at addressing implicit racial bias, which appears to be one of the primary causes of the racial disparities…
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The Misidentification of Children with Disabilities: A Harm with No Foul

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Claire Raj. Special education, despite being a uniform federal mandate, is often implemented drastically differently depending on the school system delivering services, the particular category of disability, and the race or ethnicity of students. Affluent white children who attend well-managed school districts tend to benefit from special education services. In the under-funded and over-tasked districts where most minorities attend school, the special education system does not always provide the same benefits. In these schools, special education, too often, operates as a dumping ground for those students the general education system cannot or refuses to serve. In these instances, the label of “special education” may carry harms that outweigh its benefits. Full Article
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