Volume: Volume 94

Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs by Alisha Nguyen

Note | Military Law
Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs
by Alisha Nguyen*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 129 (2021)

Keywords: Military Law, Armed Forces, Domestic Violence

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In 2012, former Air Force Major Thomas Maffei shot his ex-wife Kate Ranta and her father multiple times point blank in her Parkland, Florida apartment—right in front of their four-year-old son, who screamed, “Don’t do it Daddy, don’t shoot Mommy.”1 Although Ranta had reported Maffei’s physical abuse to his commanding officer almost two years prior, the military protected him because “charging him would cause him to lose his pension.”2 It was not until after the shooting that he was convicted in civil court and sentenced to sixty years in prison.3

Fortunately, Ranta and her father both survived.4 Seven years later, on September 1, 2019, she appeared before the House Armed Services Committee (“HASC”) as one of three military domestic abuse survivors who testified at the Committee’s first hearing on domestic violence in over fifteen years.5 Each of their stories was connected by a common thread: when the military system failed to protect them, the survivors found justice through the civilian system.6 Ranta explained that “[a]ll of this was avoidable.”7 After enduring years of abusive behavior, she holds Maffei’s command “fully responsible” because they knew he was dangerous but “chose to not do a thing about it.”8

Ranta’s testimony illustrates a broader, unresolved problem that domestic violence victims face when protection offered by the military does not extend into the civilian realm. Congresswoman Jackie Speier, who led the HASC hearing, described domestic violence in the military as a “forgotten crisis” that continues to resurface as survivors “tell and retell their stories” to deaf ears.9

Time and time again, military spouses fall through the cracks in a system that essentially allows commanding officers to play judge, jury, and executioner in domestic violence cases.10 This Note focuses on one particular aspect of the gap between military and civilian jurisdictions: the unenforceability of military protective orders by civilian law enforcement and courts. For example, on November 5, 2017, a gunman with a record of domestic violence offenses massacred twenty-six and wounded twenty-two churchgoers in Sutherland Springs, Texas.11 Despite being subject to a military protective order and no-contact order, he was able to pass multiple background checks and illegally purchase firearms on six different occasions.12 The orders were never submitted to any national criminal databases because they “were issued by his military commander and not a court.”13

Although the law now requires all military-issued protective orders to be reported to civilian law enforcement,14 these orders still are not given full faith and credit beyond military jurisdiction. This Note attempts to bridge this jurisdictional gap by proposing a new system through which military domestic abuse victims could obtain military-issued protective orders that are enforceable by civilian law enforcement and courts. Part I sets the stage with a brief overview of the military justice system and its approach to domestic abuse. Part II describes the two types of protective orders generally available to military domestic violence victims—military protective orders (“MPOs”) and civil protective orders (“CPOs”)—and summarizes their respective advantages, shortcomings, and barriers to access. In particular, this Part homes in on one of the main shortcomings of MPOs—their unenforceability by civilian authorities—and explains that are issued exclusively by the allegedly abusive service member’s commanding officer rather than by a neutral military judge.

Part III seeks to address this shortcoming by looking to domestic violence temporary restraining orders (“TROs”) as a model for reform. Applying an analytical framework from Blazel v. Bradley,15 this Part concludes that in order to create civilian-enforceable MPOs, Congress should develop an alternative process that closely mirrors the TRO process and satisfies the minimum procedural protections set forth in Blazel.

Part IV proposes a new system that gives military judges and magistrates the power to issue a new kind of MPO, which this Note refers to as judicial MPOs (“JMPOs”). In theory, a JMPO system would produce protective orders that are both military-issued and civilian-enforceable by shifting decision-making power from commanding officers to the military judiciary. Part IV then concludes with three specific recommendations for improving protection for military domestic violence victims, as well as a summary of Congress’s past and present support for these ideas.

A few notes on focus and terminology may be helpful at the outset. First, this Note discusses only situations in which an abusive service member commits acts of domestic abuse against a civilian spouse. Of course, civilians also commit domestic violence against service members; but because MPOs can be issued only against service members, such offenses raise issues that are beyond the scope of this Note.16 Second, although the terms “victim” and “survivor” are both used to describe individuals who are experiencing or have experienced domestic abuse, this Note primarily uses the term “victim” due to its focus on military spouses dealing with ongoing domestic violence.17 Finally, this Note generally refers to victims and survivors of domestic abuse with female pronouns and perpetrators with male pronouns. This choice reflects available empirical data; while male survivors and female perpetrators certainly exist, historical and recent statistics show that the vast majority of active-duty offenders are male.18

*. Scribes Award Recipient & Senior Submissions Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Economics 2017, University of California, San Diego. I would like to thank Drs. Dwight Stirling and CarolAnn Peterson for their invaluable insights on the substance of my paper, and Professor Sam Erman for his guidance throughout the note-writing process. I am also grateful to the entire Southern California Law Review team for their excellent editing work. Above all, thank you to my family and friends for their unconditional love and encouragement in all of my pursuits. None of this could have been possible without your unwavering support.

 

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Nguyen

A Criminal Law Based on Harm Alone: The Story Of California Criminal Justice Reform by Joshua Kleinfeld & Thomas Hoyt

Article | Criminal Law
A Criminal Law Based On Harm Alone: The Story of California Criminal Justice Reform

by Joshua Kleinfeld* & Thomas Hoyt†

From Vol. 94, No. 1
94 S. Cal. L. Rev. 35 (2020)

Keywords: Criminal Law, California Law, State Law

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For many criminal justice reformers, the Holy Grail of change would be a criminal system that ends the war on drugs; punishes minor property and public order offenses without incarceration (or does not handle them criminally at all); and reserves prison mainly for violent offenders. What few appreciate is that California over the last nine years has done exactly that, and the results are breathtaking in their magnitude and suddenness: from 2011 to 2019, California released 55,000 people convicted mostly of nonviolent offenses (a quarter to a third of all California prisoners) and has been declining imprisonment—which often means declining arrest and prosecution altogether—for tens of thousands more who likely would have been imprisoned a decade ago. The changes happened piecemeal; this Article is the first to put the whole picture together. But we are now in a position to describe and evaluate the whole.

We come to three conclusions. First, California criminal justice reform reduced incarceration without increasing violence, but in so doing increased property crime, public drug use, street-level disorder, and likely homelessness to such an extent as to change the texture of everyday life in some California cities, including Los Angeles and San Francisco. Second, these changes alter the relationship between individual and state substantially enough to constitute a new social contract: California has gone farther than any other American state toward a society based on John Stuart Mill’s harm principle.

Third, this array of costs and benefits is complex and nuanced enough that it is not irrational or otherwise normatively illegitimate for someone to think them either justice-enhancing or -diminishing, good for human welfare or bad for it. But what unequivocally redeems California’s new policies for California are their democratic credentials: they were accomplished through a series of elections over multiple years at multiple levels of government with a high degree of public deliberation. Criminal justice democratizers and strong proponents of federalism should endorse what California has done as a matter of political self-determination. But they might rationally not want the same thing for their own states.

*. Professor of Law and (by courtesy) Philosophy, Northwestern University. †. JD Candidate, Northwestern University Pritzker School of Law.

 

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Kleinfeld

Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans by Avery Nelson

Note | Healthcare & Life Sciences Law
Genetically Edited Sperm: An Ethical Analysis of the Potential for Modified Humans
by Avery Nelson*

From Vol. 94, No. 1
94 S. Cal. L. Rev. 139 (2020)

Keywords: Healthcare & Life Sciences Law, Biotechnology, Public Policy

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People have been striving for human “perfection” for as long as human civilization has existed, sometimes with questionable and even catastrophic results.1 The idea of perfecting the human population led to eugenics, the nineteenth and early twentieth-century philosophical movement to “breed better people.”2 Eugenics ultimately laid the framework for forced sterilization laws in a number of countries, including the United States, where lawmakers prohibited certain people from procreating.3 As appalling as forced sterilization was, eugenics took an even darker turn leading up to and during World War II when Nazi Germany murdered millions in the name of creating a superior Aryan race.4 Adolf Hitler did not come up with the concept of genetic purity on his own.5 “In fact, [Hitler] referred to American eugenics in his 1934 book, Mein Kampf.”6 Although eugenics lost momentum after these atrocities,7 the idea of human enhancement has continued. Today, scientific advancements in gene-editing technology offer a new take on human modification.

Gene editing is a group of technologies that enable scientists to change an individual’s DNA.8 Genetic material can be added, removed, or altered at particular locations in the genome.9 One such gene-editing technique is the revolutionary technology called CRISPR-Cas9, short for “clustered regularly interspaced short palindromic repeats” and CRISPR-associated protein 9,10 which was discovered in 2012.11 In 2013, groups of scientists led by Feng Zhang and George Church used CRISPR to edit human cell cultures for the first time.12 By 2015, Chinese scientist Puping Liang used CRISPR to edit the genes in human tripronuclear zygotes.13 CRISPR has generated much excitement in the scientific community because it is faster and cheaper, as well as more accurate and more efficient than any other existing method to genetically alter DNA.14 This is of particular interest in the prevention and treatment of diseases, because CRISPR has the potential to correct mutations associated with single-gene diseases such as cystic fibrosis, sickle-cell anemia, and hemophilia, as well as complex diseases such as cancer, heart disease, and HIV infection.15

However, CRISPR has rekindled debates about the numerous social, ethical, and policy concerns of genetic manipulation.16 These concerns become even more complicated with germline gene editing, which results in changes in sperm, eggs, or embryos that will be passed on to the next generation.17 Critics of germline editing worry about the potential for “designer babies,” children whose traits, including eye color, height, and even athletic ability, are modified by gene editors at the request of their parent-consumers.18 Genetically modified babies remained speculative until November 2018, when Chinese scientist Dr. He Jankui announced that he had created the world’s first “CRISPR babies,” twin girls named Lulu and Nana.19

To conduct his experiment, Dr. He recruited couples in which the men had HIV infection and the women did not.20 After creating embryos by fertilizing the eggs with the sperm, Dr. He used CRISPR to edit the embryos and disable a gene that helps HIV enter healthy cells, for the purpose of giving the twin girls resistance to HIV.21 Notably, however, “Dr. He admitted that the edit was not successful in one of the embryos, and it is unclear whether it was completely or even partially successful in the other.”22 Dr. He’s experiment generated an outpouring of criticism and hand-wringing from scientists and bioethicists around the world, who labeled him a “rogue” scientist23 whose unethical experiment was “amateurish” and “unconscionable.”24 The safety risks and long-term effects of Dr. He’s experiment will remain a mystery for years to come, meaning the twins will likely be studied for the rest of their lives.25 Although Lulu and Nana brought bioethical considerations of gene editing to the forefront, researchers are still striving to advance CRISPR technology, with one of the most recent developments occurring right now in New York City.26

Currently, reproductive biologists at Weill Cornell Medicine are making the first attempt at genetically editing the DNA in human sperm using CRISPR.27 The controversial research is aimed at preventing genetic disorders that are passed down from men, including certain forms of male infertility.28 The researchers are beginning with a gene that increases the risk of breast, ovarian, prostate and other cancers.29 Because DNA is packed very tightly inside the head of each sperm, it is difficult to insert the microscopic CRISPR tool.30 To overcome this challenge, the Cornell scientists electrically shock the sperm with the goal that the shock will cause the cells to loosen up for a moment so that CRISPR can get inside.31 June Wang, a lab technician conducting the experiments at Cornell, admits that “[i]t’s kind of a weird concept” but states that “it works pretty well.”32

Although the experiments are still underway and are not yet successful, the research raises many of the same hopes—and fears—as editing the genes in human embryos.33 Nevertheless, the researchers defend their work.34 Gianpiero Palermo, who runs the lab where the experiment is being conducted, states, “I think it’s important from the scientific point of view to investigate in an ethical manner to be able to learn if it’s possible.”35 Palermo went on to say, “If we can wipe out a particular gene, it would be incredible.”36 However, Françoise Baylis, a bioethicist at Dalhousie University in Canada who is advising the World Health Organization, expresses the view that editing DNA in sperm raises the same troubling questions as editing DNA in embryos.37 In addition to safety concerns for resulting babies and future generations in the event that the genetically edited sperm is used, there are profound ethical and social concerns about conducting the research in the first place.38 As bioethicist Ben Hurlbut put it,

There’s reason to worry about undertaking the research before we’ve asked the question properly whether we would ever actually want to use those techniques . . . . Once those techniques are developed, it becomes much harder to govern them. If you’ve done the hard work of developing the recipe, someone else can bake the cake.39

The willingness of researchers to develop human uses of CRISPR demonstrates the pressing need to regulate such advancements and, in particular, its possible use to genetically edit human sperm. Part I of this Note will provide a scientific background necessary to understand genetically edited sperm, including a brief history of relevant scientific advancements, a discussion of CRISPR-Cas9 technology, and an explanation of somatic cells and germline cells. Part II will analyze various ethical considerations regarding editing human sperm, including safety concerns, informed consent issues, the debate between treatment and enhancement, and the potential for new forms of social inequality. Part III will discuss the most applicable regulations in the United States under the Food and Drug Administration and National Institutes of Health, and ultimately conclude that as it stands, the law is unprepared for the development of genetically edited sperm. Part IV will propose a resolution to address these concerns, including a federal licensing regime, a call for public engagement, and regulations to mitigate equality and accessibility concerns if sperm editing is commercialized.

* Senior Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Finance 2017, University of Florida. I thank my family, friends, and the fantastic editors of the Southern California Law Review for their support and guidance throughout the publication process.

 

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Nelson

Walling Out: Rules and Standards in the Beach Access Context by Timothy M. Mulvaney

Article | State Law
Walling Out: Rules and Standards in the Beach Access Context
by Timothy M. Mulvaney*

From Vol. 94, No. 1
93 S. Cal. L. Rev. 1 (2020)

Keywords: State Law, Beach Access, Public Policy

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The overwhelming majority of U.S. states facially allocate exclusionary rights and access privileges to beaches by categorically deciding whom to wall in and whom to wall out. In the conventional terms of the longstanding debate surrounding the design of legal directives, such “rules” are considered substantively determinant ex ante and, in application, analogically transparent across similarly situated cases. Only a small number of jurisdictions have adopted “standards” in the beach access context, which—again, on the conventional account—sacrifice both determinacy and transparency for the ability to accommodate ex post the complexities of individual cases. This Article contends that beach access policy illustrates the familiar limitations of this conventional rules-versus- standards account in two elucidating ways. First, the implementation of contemporary beach access law suggests that the gap between rules and standards with respect to the virtue of determinacy is not nearly as wide as the conventional account allows. In short, beach access rules are not and cannot in actuality be divorced from context, while beach access standards take shape through applications that reveal core archetypes. Second, while beach access rules reflect the virtue of transparency in the sense that they minimize some forms of arbitrariness, standards offer their own, robust version of transparency, which is grounded in promoting dialogue and demanding accountability. The Article offers these contentions not to press the view that standards are necessarily superior to rules en masse, but, instead, to prompt reflection on the nearly uniform and seemingly impulsive rule fetishism that has held sway in the beach access context.

*. Professor of Law and Associate Dean for Faculty Research, Texas A&M University School of Law. Thank you to Gregory Alexander, Vanessa Casado Pérez, Hanoch Dagan, Nestor Davidson, Eric Freyfogle, John Lovett, Nadav Shoked, Joseph Singer, Laura Underkuffler, Brian Weeks, and Katrina Wyman for commenting on earlier drafts of this Article, and to Cole Watson for diligent research assistance. Thanks, too, to Donna, Eugene, Patrick, Jacob, and Blake Mulvaney, Ashley, Tristan, and Ryan Hedrick, Christopher, Arthur, and Amy McCann, Kevin Tray, Michael and Robert Lowe, Paul D’Elia, Edward, Mary, and Allison Norcia, Andrew Martin, Bryan Wallach, Mark Lindquist, Doug Forken, Ryan Morra, Eleanor Hish, David Manzo, James Courtney, Christopher Lilien, Robert Leichte, Chris Seiler, Marc Buttacovoli, Mary Spanburgh, Anthony Casale, Matthew Smith, Maria Dunlap, Benjamin Greer, Craig Irrgang, Maikel O’Hanlon, Matthew Duffy, John Bramlette, Richard Billings, Kevin Gregory, Matthew Popowsky, Michael Newshell, Ashley Reichelman, Michael Hazlet, and Brian Gardner, and the many others along the way who participated in and contributed to the Habitat Paddle to Build project that served as inspiration for this Article. I benefitted from the opportunity to present various iterations and components of this manuscript at Cornell Law School, Harvard Law School, Maastricht University, the University of Cambridge, the University of Edinburgh, and the University of Michigan Law School.

Mulvaney

Rearranging Fair Use: A Critical Analysis of Kienitz v. Sconnie Nation by Eric Wolff

Note | Intellectual Property Law
Rearranging Fair Use: A Critical Analysis of Kienitz v. Sconnie Nation
by Eric Wolff*

From Vol. 94, No. 1
94 S. Cal. L. Rev. 83 (2020)

Keywords: Intellectual Property Law, Fair Use, Kienitz v. Sconnie Nation

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The Seventh Circuit’s 2014 opinion in Kienitz v. Sconnie Nation has played an outsized role in the discourse on fair use, an affirmative defense to copyright infringement.1 The opinion is quite short, spanning just over three pages, and it emerged from a circuit that produces relatively few fair use opinions.2 Yet Kienitz is often cited for its rejection of “transformative use,” a relatively new but influential concept that has reshaped fair use doctrine.3  The court in Kienitz warned that transformative use threatens to replace the four-factor test for fair use found in § 107 of the Copyright Act4 and could erode authors’ exclusive rights to produce “derivative works” based on their original works.5 In place of transformative use, Kienitz proposed that courts should simply “stick with the statutory list” of four factors when analyzing fair use.6 The opinion applied this approach by focusing its analysis on factors three and four: the amount of the copyrighted work used and the effect of that use on the market for the copyrighted work.7

Is Kienitz’s approach a viable model for analyzing a fair use defense without relying on transformative use? The answer is no. This Note concludes that Kienitz’s reasoning is fundamentally flawed and suffers from many of the same infirmities it identified in transformative use.8

There are three problems with Kienitz’s reasoning. First, its approach to factor four defines the scope of derivative works in a way that would severely limit authors’ rights.9 Second, it employs a test, known as the  “substitute/complement test,” which tends to underestimate market harm.10 Finally, its analysis of factor three implies there was no copyright infringement, which if true, would have made the fair use defense unnecessary.11 If Kienitz’s amputation of transformative use was an attempt to remedy its harmful symptoms, its cure was worse than the disease.12

Although its analysis was flawed, Kienitz’s diagnosis of the problems with transformative use was accurate.13 Transformative use has been applied in a way that has come to dominate the statutory fair use factors and blurs the line between protected derivative works and fair use.14 This Note proposes two ways to restructure fair use analysis to limit the negative effects of transformative use: (1) rearrange the order in which the factors are analyzed and (2) make a finding of transformative purpose a threshold requirement of transformative use.

Part I explains how the scope of fair use has contracted and expanded throughout United States history and how transformative use has driven the current period of expansion. Part II examines the analysis in Kienitz and concludes, for the reasons described above, that it does not provide a viable alternative to transformative use. Part III demonstrates an alternative fair use analysis of the facts in Kienitz to show how the opinion could have benefited from incorporating transformative use into its analysis and by applying this Note’s two proposals for restructuring fair use. In the process, Part III also reveals, and argues against, common issues in other courts’ analyses of each fair use factor, including the widespread underappreciation of factor two15 and Campbell v. Acuff-Rose Music, Inc.’s unprecedented instruction to emphasize findings from factor one in the analysis of factor three.16

* Executive Senior Editor, Southern California Law Review, Volume 94; Juris Doctor Candidate 2021, University of Southern California Gould School of Law. This Note has benefited greatly from the attentive guidance and insightful comments of Professors Jonathan Barnett and Sam Erman. It would not exist without the unwavering support of my spouse Georgina and my parents Lori and Greg. I am also grateful to my colleagues at the Southern California Law Review who edify and inspire me with their excellent work.

Wolff