Category: Notes

Altruism or Commercialism? Evaluating the Federal Ban on Compensation for Bone Marrow Donors – Note by Nicolette Young

From Volume 84, Number 5 (July 2011)
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Voluntary, altruistic bone marrow donation is currently the only way for a patient to receive a bone marrow transplant. Unfortunately, bone marrow supply from altruism falls far short of demand, making our current system insufficient. Although scholars have proposed numerous avenues for change in the organ donation system, no change has occurred. One popular proposal is to remove the ban on compensation for organ donors, a proposition that implicates many ethical and moral concerns. These moral concerns include the commodification of the human body, the exploitation of poor and ethnic minority populations, and the general repugnance that some feel toward the idea of selling one’s body. If compensation for bone marrow donation were allowed, we may be able to overcome these moral and ethical concerns both conceptually and constitutionally. For example, the ethical dilemmas that surround bone marrow donation are somewhat abated by the rise of new technologies that have made bone marrow donation much less intrusive.

 

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Criminal Cookbooks: Proposing a New Categorical Exclusion for the First Amendment – Note by Chelsea Norell

From Volume 84, Number 4 (May 2011)
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This Note will propose a new categorical exclusion from the First Amendment for speech that specifically details how to commit a crime and, –as a whole, lacks serious literary, artistic, political, or scientific value. This exclusion–the crime plans exclusion–may be tailored in various ways to reflect an accommodation of free speech principles and government interests. Ultimately, this Note will advocate a two-plank definition of crime plans speech requiring (1) that the speech be sufficiently specific so that a reasonable person who has never committed the described crime could follow the instructions and expect to carry out the crime or conceal evidence, and (2) that the speech, “as a whole, lacks serious literary, artistic, political, or scientific value,” which will be referred to collectively as “redemption value.”

While this Note will advocate a new categorical exclusion, it will also suggest that crime plans speech can be denied First Amendment protection under traditional strict scrutiny analysis. Moreover, when crime-facilitating speech does not fall into the crime plans exclusion, it still may be denied First Amendment protection under strict scrutiny analysis if the state’s compelling interest in prohibiting that speech outweighs the individual’s free speech interest. Though strict scrutiny analysis can often yield the same result as a categorical exclusion, categorically excluded speech does not have presumptive constitutional protection and is subject only to the minimal rational basis test. Thus, the argument structure of the categorical exclusion conveys a message that specific crime-facilitating speech that has virtually no noncriminal redemptive value is undeserving of First Amendment protection.

In addition to a categorical exclusion, this Note will propose that specific crime-facilitating speech that poses dangers of catastrophic magnitude should be subject to prior restraints. Such restraints are constitutionally permissible so long as they implement procedural safeguards to combat standardless discretion.

Crime-facilitating speech is any speech that abets crime or provides information that may be useful in a criminal endeavor. Such speech can take various forms, ranging from one-on-one conversations to electronic publications disseminated throughout the world. Crime-facilitating speech makes some crimes achievable that would not otherwise be possible, such as divulging social security numbers to facilitate identity theft. This speech also makes some crimes easier to commit or harder to detect and thus harder to deter and punish.

 

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Blood Electronics: Congo’s Conflict Minerals and the Legislation that Could Cleanse the Trade – Note by Shannon Raj

From Volume 84, Number 4 (May 2011)
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The law, when enforced, can be used to punish. It can be used to articulate social norms and standards, or to define and impose responsibilities. The law can also, however, be used to change incentives. When designed and implemented properly, a good law establishes an incentive structure to align legal responsibility with the actors most able to change a set of results–actors who possess the information, the institutional capacity, and the practical ability to make a difference in a situation our society seeks to improve. In the 111th Congress, Representative Jim McDermott proposed just such a law. The Conflict Minerals Trade Act took note of America’s role in the devastating humanitarian crisis it may be inadvertently fueling: the situation in the Democratic Republic of Congo (“DRC” or “DR Congo”), home to the minerals used in nearly every electronic product known to man. Indeed, as the conflict in DR Congo reaches catastrophic proportions, the interests of a broad range of actors have become affected–and not just those in the human rights sector. Mineral wealth extracted from DR Congo is likely inside of your cell phone, your laptop, and your iPod–raising issues of personal responsibility as well as corporate ethics. As individuals confront their consciences and investors contemplate their stock portfolios, issues once relegated to the realm of international human rights law have now entered many of our homes and purses without us realizing. The Conflict Minerals Trade Act, by altering an incentive structure, aimed to change that unawareness by bringing our trade legislation in line with both our best interests and our ethical responsibilities.

 

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A Congressional Carve Out: The Necessity for Uniform Application of Professional Sports Leagues’ Performance-Enhancing Drug Policies – Note by Lee Linderman

From Volume 84, Number 3 (March 2011)
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INTRODUCTION “The use of steroids [in sports] has become a public health crisis. Half a million kids a year in the U.S. are taking steroids . . . and many of them do this because they are emulating their sports heroes.” In the past several years, performance-enhancing drug (“PED” or “steroid”) use in major professional sports has captured the attention of not only average fans, but also lawmakers in Congress. Rampant steroid abuse in Major League Baseball (“MLB”) catalyzed a 2005 congressional hearing at which famous ballplayers like Mark McGwire testified. In 2009, two National Football League (“NFL”) players challenged their suspensions for using substances banned by the NFL collective bargaining agreement (“CBA”) in court. This suggests sports leagues may lack the legal authority to conclusively bargain for and uniformly apply certain aspects of a CBA such as the PED policy—a fact that compelled NFL Commissioner Roger Goodell to seek congressional intervention in the steroids arena.

During this so-called steroids era, sports radio and television shows have shifted in focus from the magic of record-breaking performances to the possibility that PED use tainted those achievements. Cynics have cast the entire 1990s as a statistical lie, claiming there is no way to tell who was taking PEDs and who was not; as a result, many commentators have recommended adding asterisks to individual or team records that indicate those records might have been tainted by PED abuse. Scholars from a variety of fields have explored how PED use has negatively affected the integrity of professional sports, the medical dangers of taking PEDs, and how professional athletes’ use of PEDs has adversely affected youth athletes. In response to this outburst of PED use in professional sports and the subsequent explosion of literature decrying it, leagues such as the NFL and MLB have significantly increased the penalties for players caught using PEDs in an attempt to cleanse the leagues’ images.

 

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A Flawed Solution: The Difficulties of Mandating a Leverage Ratio in the United States – Note by John Holman

From Volume 84, Number 3 (March 2011)
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While the causes of the recent financial crisis have been debated extensively, the conclusion that excessive leverage by financial institutions contributed to the crisis has garnered widespread support. Concerns over the role of leverage have spurred a renewed focus on banks’ ability to exploit the presence of moral hazard due to limited liability and the government’s tendency to rescue banks in distress. The crisis painfully underscored how banks use leverage to increase their expected returns while simultaneously shifting risk to creditors and the public at large.

 

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“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies – Note by Stephanie M. Hurst

From Volume 84, Number 2 (January 2011)
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On September 16, 2007, allegedly without any provocation or justification, personnel from the security firm formerly known as Blackwater Worldwide1 fired into Baghdad’s crowded Nisoor Square and killed seventeen Iraqi civilians. To date, neither the firm nor its employees have been held accountable for this incident. Moreover, a report issued by a U.S. House of Representatives oversight panel in October 2007 indicated that “Blackwater employees had been involved in at least 196 firefights in Iraq since 2005, an average of 1.4 shootings per week.” The report also stated that in 84 percent of these incidents, Blackwater personnel were the first to fire even though, by contract, they were allowed to fire only in self-defense.

Unfortunately, Blackwater is neither the first nor the only security firm to commit human rights abuses. In the late 1990s, personnel from another security firm, DynCorp International, allegedly bought women and girls as sex slaves while deployed in Bosnia. The only punishment rendered on the personnel responsible for these human rights abuses was the termination of their employment contracts. Moreover, despite these allegations, the firm later received a contract in Iraq worth $250 million.

 

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Taking the Fight Back to Title VII: A Case for Redefining “Because of Sex” to Include Gender Stereotypes, Sexual Orientation, and Gender Identity – Note by William C. Sung

From Volume 84, Number 2 (January 2011)
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Michael P. Carney was a good cop. Since graduating from the police academy in 1982, he received numerous commendations for his outstanding work as a police officer and contributions to the community. He had been recognized for saving a man who had jumped from a bridge into the Connecticut River in a suicide attempt, apprehending a bank robber, and cofounding a youth mentorship program. He had worked as a police academy instructor, an aide to the chief of police, and a detective in the youth assessment center, the narcotics division, and the uniform division. But behind closed doors, he was tormented by the need to keep a secret for many years—Carney was gay.

For years Carney stayed in the closet out of fear of reprisal and being ostracized. He went to work every day afraid to talk about his personal life, including a date from the night before, his weekend, or his family. He went into every domestic or gun call thinking if he were gunned down, who would notify his life partner? Would his life partner learn of his death on the eleven o’clock news? How would his colleagues treat his life partner at his funeral? This fear led to years of isolation and heavy drinking, which took their toll; in 1989, beaten and defeated, Carney resigned from his post.

 

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Behavioral Addictions and the Law – Note by Brent S. Colasurdo

From Volume 84, Number 1 (November 2010)
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The doctrine of free will underlies much of the legal system in the United States. The criminal law, for instance, does not punish a person unless that individual made a choice to commit a wrongful act or otherwise had some sort of control over the wrongful behavior. This principle often arises in the context of individuals with diseases or disorders. Given that a person does not typically choose to be afflicted with a disease, and often cannot control the effects of the disease, the law cannot rightfully hold the person responsible for those effects. For instance, a criminal defendant who committed a wrongful act as a result of suffering from schizophrenia, a mental illness over which the defendant has no control, will likely be punished less severely than a non-mentally ill defendant, or not at all. Similarly, a civil defendant who crashed a car due to a sudden unforeseeable heart attack will likely not be liable for the resulting damage. Implicit in this concept is the idea that any person in the same circumstances would have done the same thing.

A legal system such as ours, built around the concept of free will, is contorted by the concept of addiction. Addicts, by definition, are unable to control their substance use. Implicit in this concept is the idea that any person who is given an addictive substance for a certain amount of time can become addicted to that substance. The law has wrestled with fitting the concept of drug addiction into the many doctrinal areas founded on the concept of free will.

 

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