I. DATA BREACHES: AN OVERVIEWOn September 22, 2016, technology company Yahoo! announced that a third party had wrongfully gained access to at least 500 million Yahoo! user accounts, the largest data breach1 in history.2 Hackers stole individuals' names, telephone numbers, email addresses, dates of birth, passwords, and security questions and answers.3 Because individuals often use the same email address, password, and security questions for multiple Internet accounts, the third party hacker could potentially gain access to additional private accounts, including financial accounts, of 500 million individuals.4More recently, Equifax - a major credit-reporting firm - announced that hackers accessed the personal information of more than 140 million U.S. customers.5 The obtained information includes individuals' names, addresses, Social Security numbers, and driver's license numbers.6 The hackers could use this extensive information to open new financial accounts in individuals' names, make fraudulent charges on their credit cards, and commit tax fraud.7 Due to the scope of the breach, the affected individuals will have to monitor their credit and personal accounts for the rest of their lives because hackers can use the stolen in formation for many years going forward to commit fraud, including "creating a new you."8The data breaches of Yahoo! and Equifax are two of the largest known data breaches and are part of a trend in recent years in which the size and scope of data breaches of major corporations have steadily increased.9 This trend is expected to continue as hackers become increasingly sophisticated and more personal information is stored digitally.10 Federal courts' interpretations of Article III standing requirements, however, frequently result in unjust outcomes for data breach victims.11 In everyday life, individuals provide businesses and other entities with their personal information. Indeed, it is inconceivable that individuals could successfully function in the modern world without sharing such information. Yet when the information falls into the hands of hackers, individuals may suffer identity theft, fraudulent credit card charges, and other consequences. Individuals whose private information is accessed therefore reasonably expend considerable time, energy, and money protecting their identity and financial accounts by purchasing credit-monitoring services, monitoring their accounts for fraudulent charges, disputing any fraud that occurs, and paying fees associated with credit freezes.In order to recover the costs incurred following a data breach, data breach victims frequently attempt to sue the companies that failed to adequately protect their information from hackers.12 Some federal courts, however, have found that data breach victims cannot satisfy Article III standing requirements. As a result, courts dismiss lawsuits against the organizations that allowed victims' information to be accessed due to insufficient data security safe
{"title":"Access Denied: Data Breach Litigation, Article III Standing, and a Proposed Statutory Solution","authors":"Patrick J. Lorio","doi":"10.2139/SSRN.2996533","DOIUrl":"https://doi.org/10.2139/SSRN.2996533","url":null,"abstract":"I. DATA BREACHES: AN OVERVIEWOn September 22, 2016, technology company Yahoo! announced that a third party had wrongfully gained access to at least 500 million Yahoo! user accounts, the largest data breach1 in history.2 Hackers stole individuals' names, telephone numbers, email addresses, dates of birth, passwords, and security questions and answers.3 Because individuals often use the same email address, password, and security questions for multiple Internet accounts, the third party hacker could potentially gain access to additional private accounts, including financial accounts, of 500 million individuals.4More recently, Equifax - a major credit-reporting firm - announced that hackers accessed the personal information of more than 140 million U.S. customers.5 The obtained information includes individuals' names, addresses, Social Security numbers, and driver's license numbers.6 The hackers could use this extensive information to open new financial accounts in individuals' names, make fraudulent charges on their credit cards, and commit tax fraud.7 Due to the scope of the breach, the affected individuals will have to monitor their credit and personal accounts for the rest of their lives because hackers can use the stolen in formation for many years going forward to commit fraud, including \"creating a new you.\"8The data breaches of Yahoo! and Equifax are two of the largest known data breaches and are part of a trend in recent years in which the size and scope of data breaches of major corporations have steadily increased.9 This trend is expected to continue as hackers become increasingly sophisticated and more personal information is stored digitally.10 Federal courts' interpretations of Article III standing requirements, however, frequently result in unjust outcomes for data breach victims.11 In everyday life, individuals provide businesses and other entities with their personal information. Indeed, it is inconceivable that individuals could successfully function in the modern world without sharing such information. Yet when the information falls into the hands of hackers, individuals may suffer identity theft, fraudulent credit card charges, and other consequences. Individuals whose private information is accessed therefore reasonably expend considerable time, energy, and money protecting their identity and financial accounts by purchasing credit-monitoring services, monitoring their accounts for fraudulent charges, disputing any fraud that occurs, and paying fees associated with credit freezes.In order to recover the costs incurred following a data breach, data breach victims frequently attempt to sue the companies that failed to adequately protect their information from hackers.12 Some federal courts, however, have found that data breach victims cannot satisfy Article III standing requirements. As a result, courts dismiss lawsuits against the organizations that allowed victims' information to be accessed due to insufficient data security safe","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45268752","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}
This note examines the claim that the exclusion of gender identity disorders from the Americans with Disabilities Act violates the dignitary rights of transgender individuals. In order to do this, this Note discusses the developing concept of dignitary rights, particularly in the context of the Supreme Court's many references to dignity in its LGBT jurisprudence, and concludes that the exclusion is unconstitutional because it violates the dignity of transgender individuals by stigmatizing them and preventing them from seeking access to anti-discrimination protection to which they may otherwise be entitled.
{"title":"When Anti-Discrimination Law Discriminates: A Right to Transgender Dignity in Disability Law","authors":"K. Aber","doi":"10.2139/SSRN.2805781","DOIUrl":"https://doi.org/10.2139/SSRN.2805781","url":null,"abstract":"This note examines the claim that the exclusion of gender identity disorders from the Americans with Disabilities Act violates the dignitary rights of transgender individuals. In order to do this, this Note discusses the developing concept of dignitary rights, particularly in the context of the Supreme Court's many references to dignity in its LGBT jurisprudence, and concludes that the exclusion is unconstitutional because it violates the dignity of transgender individuals by stigmatizing them and preventing them from seeking access to anti-discrimination protection to which they may otherwise be entitled.","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68340494","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}
In February 2015, the Correctional Association of New York released a report studying the quality of and access to reproductive health care for incarcerated women and found that: “[o]verall . . . reproductive health care for women in New York State prisons is woefully substandard, with women routinely facing poor-quality care and assaults on their basic human dignity and reproductive rights.” The findings of this and other studies provide concrete evidence of the poor quality of reproductive health care available to incarcerated women and should be a wake up call for legislatures that these policies should be changed. Three issues of particular concern are incarcerated women’s access to gynecological examinations, sanitary supplies, and contraception. The purpose of this Note is to examine New York State policies addressing reproductive health care for incarcerated women, identify problems with them, and make recommendations for reform. This Note will examine current policies and practices of New York State correctional facilities that address gynecological examinations, sanitary supplies, and contraception, and assess why these policies are problematic from both legal and medical perspectives. Furthermore, it will recommend bringing New York’s policies in line with legal, medical, and international standards as a strategy for reform, and finally, will advocate for using existing federal and state programs including Title X to provide funding for reproductive care both prior to and after release.
{"title":"Inadequate Access: Reforming Reproductive Health Care Policies for Women Incarcerated in New York State Correctional Facilities","authors":"K. Walsh","doi":"10.2139/SSRN.2778668","DOIUrl":"https://doi.org/10.2139/SSRN.2778668","url":null,"abstract":"In February 2015, the Correctional Association of New York released a report studying the quality of and access to reproductive health care for incarcerated women and found that: “[o]verall . . . reproductive health care for women in New York State prisons is woefully substandard, with women routinely facing poor-quality care and assaults on their basic human dignity and reproductive rights.” The findings of this and other studies provide concrete evidence of the poor quality of reproductive health care available to incarcerated women and should be a wake up call for legislatures that these policies should be changed. Three issues of particular concern are incarcerated women’s access to gynecological examinations, sanitary supplies, and contraception. The purpose of this Note is to examine New York State policies addressing reproductive health care for incarcerated women, identify problems with them, and make recommendations for reform. This Note will examine current policies and practices of New York State correctional facilities that address gynecological examinations, sanitary supplies, and contraception, and assess why these policies are problematic from both legal and medical perspectives. Furthermore, it will recommend bringing New York’s policies in line with legal, medical, and international standards as a strategy for reform, and finally, will advocate for using existing federal and state programs including Title X to provide funding for reproductive care both prior to and after release.","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2778668","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68313887","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}
This note will explore the implications of recent charter school legislation. The Washington Supreme Court recently held, in League of Women Voters of Washington et al v. State, that charter schools are not “common schools,” and therefore, state funds designated for “common schools” can’t be applied towards supporting charter schools. Part I provides background on the development of charter schools and describes the Washington Supreme Court’s decision in League of Women Voters, particularly the Court’s reliance on its 1909 interpretation of the Washington constitution’s “common schools” principle in School District No. 20 v. Bryan. Part II argues that evolving views of school governance necessitate a reading of the Bryan requirements that is more sensitive to the democratic ideals of participation, deliberation, and accountability underlying Bryan. Allowing the League of Women Voters interpretation of Bryan as the only appropriate means of voter control of public schools would have harmful and far-reaching effects not contemplated by the Bryan court on public schools across the United States. Part III addresses whether a system of state-authorized charter schools can achieve the democratic ideal and considers one possible solution.
{"title":"Charter School Jurisprudence and the Democratic Ideal","authors":"Tara Raam","doi":"10.2139/SSRN.2778653","DOIUrl":"https://doi.org/10.2139/SSRN.2778653","url":null,"abstract":"This note will explore the implications of recent charter school legislation. The Washington Supreme Court recently held, in League of Women Voters of Washington et al v. State, that charter schools are not “common schools,” and therefore, state funds designated for “common schools” can’t be applied towards supporting charter schools. Part I provides background on the development of charter schools and describes the Washington Supreme Court’s decision in League of Women Voters, particularly the Court’s reliance on its 1909 interpretation of the Washington constitution’s “common schools” principle in School District No. 20 v. Bryan. Part II argues that evolving views of school governance necessitate a reading of the Bryan requirements that is more sensitive to the democratic ideals of participation, deliberation, and accountability underlying Bryan. Allowing the League of Women Voters interpretation of Bryan as the only appropriate means of voter control of public schools would have harmful and far-reaching effects not contemplated by the Bryan court on public schools across the United States. Part III addresses whether a system of state-authorized charter schools can achieve the democratic ideal and considers one possible solution.","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68313692","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}
The Internet of Things (“IoT”) is an intriguing digital phenomenon in technology that creates many legal challenges as the world becomes more interconnected through the Internet. By creating a connected system, the IoT links a network of physical objects — like consumer devices — and enables these devices to communicate and exchange data. In the very near future, almost every consumer device, from cars to a coffee mug, will connect through the Internet. The IoT has incredible potential to better society by providing immense amounts of rich sensory data for analytics and other uses. Nevertheless, there are also many latent dangers including privacy violations and security risks. The legal scholarship surrounding the privacy issues of the IoT is currently underdeveloped for this exciting and frightening digital frontier. In this Note, I add to the legal discussion of privacy law by analyzing the legal repercussions of the IoT and its relationship to privacy tort law. I summarize the foundations of privacy law and current regulations that apply to the IoT before providing my potential solution. In particular, I suggest that two privacy torts, the public disclosure of private facts and intrusion upon seclusion tort, can provide partial civil remedies for consumers harmed by the IoT. Each privacy tort has evolved in different ways since their creation and I will explore their separate advantages and disadvantages. I advocate for the expanded use and revitalization of these privacy torts through judicial application in IoT cases as a potential strategy for regulating the IoT.
{"title":"The Internet of Things and Potential Remedies in Privacy Tort Law","authors":"Alexander H. Tran","doi":"10.2139/ssrn.2769675","DOIUrl":"https://doi.org/10.2139/ssrn.2769675","url":null,"abstract":"The Internet of Things (“IoT”) is an intriguing digital phenomenon in technology that creates many legal challenges as the world becomes more interconnected through the Internet. By creating a connected system, the IoT links a network of physical objects — like consumer devices — and enables these devices to communicate and exchange data. In the very near future, almost every consumer device, from cars to a coffee mug, will connect through the Internet. The IoT has incredible potential to better society by providing immense amounts of rich sensory data for analytics and other uses. Nevertheless, there are also many latent dangers including privacy violations and security risks. The legal scholarship surrounding the privacy issues of the IoT is currently underdeveloped for this exciting and frightening digital frontier. In this Note, I add to the legal discussion of privacy law by analyzing the legal repercussions of the IoT and its relationship to privacy tort law. I summarize the foundations of privacy law and current regulations that apply to the IoT before providing my potential solution. In particular, I suggest that two privacy torts, the public disclosure of private facts and intrusion upon seclusion tort, can provide partial civil remedies for consumers harmed by the IoT. Each privacy tort has evolved in different ways since their creation and I will explore their separate advantages and disadvantages. I advocate for the expanded use and revitalization of these privacy torts through judicial application in IoT cases as a potential strategy for regulating the IoT.","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-03-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68306895","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}
Pub Date : 2013-12-01DOI: 10.1163/2468-1733_shafr_sim260100181
Matthew E. Vigeant
The role that the Responsibility to Protect ("R2P") played in the United States' decision to intervene in Libya in 2011 received wide coverage in academic and policy circles. While the Executive Branch's legal justification for taking action in Libya without Congressional authorization was not premised solely on humanitarian grounds, R2P is a key plank in President Obama's foreign policy. Other commentators have discussed the role of R2P in international law, but a major domestic legal question remains: does the President have the power to unilaterally deploy military forces on R2P missions with no direct U.S. national security interests at stake? This Note argues that though past unilateral Executive deployments of military force were justified primarily on U.S. national security interests, due to (1) the evolution of the President's national security powers, and (2) the President's ability to define "the national interest," the Executive has the constitutional power to send U.S. military forces into harm's way on purely humanitarian missions without the consent of Congress. Yet unilateral deployments may produce unintended consequences, as seen in Africa and Syria after the Libyan intervention. In light of these events, this Note lays out a proposed solution to constrain the President's ability to conduct such unilateral missions: Congress must pass legislation to check the Executive's ability to conduct R2P deployments, and the judiciary must be willing to enforce such legislation.I. IntroductionIn 2011, President Barack Obama ordered the U.S. military to provide logistical and combat support for NATO forces to conduct a series of strikes against Colonel Muammar Quaddafi's regime in Libya without Congressional authorization.1 According to the Department of Justice's Office of Legal Counsel ("OLC") and State Department Legal Advisor Harold Koh, the President possessed the power to order the involvement of U.S. military forces in combat situations in Libya without Congressional approval because (1) important national security interests were at stake; and (2) this intervention did not rise to the threshold of a "war" for Constitutional purposes.2 The two important national security interests Koh cited were (a) maintaining the credibility of the United Nations ("U.N.") Security Council, and (b) preserving regional stability.3 While discussing what "preserving regional stability" meant, the President stated that a humanitarian crisis would ensue without U.S. intervention.4Keying in on the role that humanitarian purposes played in the U.S. decision to intervene in Libya and subsequent U.N. Security Council debates over the situation in Libya, scholars hailed or decried the Libyan intervention as the fruition of the Obama Administration's effort to promote the Responsibility to Protect (commonly, "R2P") Principle.5 R2P is shorthand for the emerging international consensus in favor of supporting humanitarian intervention when a state fails to protect
{"title":"Unforeseen Consequences: The Constitutionality of Unilateral Executive R2P Deployments and the Need for Congressional and Judicial Involvement","authors":"Matthew E. Vigeant","doi":"10.1163/2468-1733_shafr_sim260100181","DOIUrl":"https://doi.org/10.1163/2468-1733_shafr_sim260100181","url":null,"abstract":"The role that the Responsibility to Protect (\"R2P\") played in the United States' decision to intervene in Libya in 2011 received wide coverage in academic and policy circles. While the Executive Branch's legal justification for taking action in Libya without Congressional authorization was not premised solely on humanitarian grounds, R2P is a key plank in President Obama's foreign policy. Other commentators have discussed the role of R2P in international law, but a major domestic legal question remains: does the President have the power to unilaterally deploy military forces on R2P missions with no direct U.S. national security interests at stake? This Note argues that though past unilateral Executive deployments of military force were justified primarily on U.S. national security interests, due to (1) the evolution of the President's national security powers, and (2) the President's ability to define \"the national interest,\" the Executive has the constitutional power to send U.S. military forces into harm's way on purely humanitarian missions without the consent of Congress. Yet unilateral deployments may produce unintended consequences, as seen in Africa and Syria after the Libyan intervention. In light of these events, this Note lays out a proposed solution to constrain the President's ability to conduct such unilateral missions: Congress must pass legislation to check the Executive's ability to conduct R2P deployments, and the judiciary must be willing to enforce such legislation.I. IntroductionIn 2011, President Barack Obama ordered the U.S. military to provide logistical and combat support for NATO forces to conduct a series of strikes against Colonel Muammar Quaddafi's regime in Libya without Congressional authorization.1 According to the Department of Justice's Office of Legal Counsel (\"OLC\") and State Department Legal Advisor Harold Koh, the President possessed the power to order the involvement of U.S. military forces in combat situations in Libya without Congressional approval because (1) important national security interests were at stake; and (2) this intervention did not rise to the threshold of a \"war\" for Constitutional purposes.2 The two important national security interests Koh cited were (a) maintaining the credibility of the United Nations (\"U.N.\") Security Council, and (b) preserving regional stability.3 While discussing what \"preserving regional stability\" meant, the President stated that a humanitarian crisis would ensue without U.S. intervention.4Keying in on the role that humanitarian purposes played in the U.S. decision to intervene in Libya and subsequent U.N. Security Council debates over the situation in Libya, scholars hailed or decried the Libyan intervention as the fruition of the Obama Administration's effort to promote the Responsibility to Protect (commonly, \"R2P\") Principle.5 R2P is shorthand for the emerging international consensus in favor of supporting humanitarian intervention when a state fails to protect ","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"64432375","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}
Federal agents often employ a two-step interview process for suspects in extraterritorial terrorism investigations. Agents conduct the first interview without Miranda warnings for the purpose of intelligence-gathering. Separate “clean team” agents then give the suspect Miranda warnings prior to the second stage of the interview, which they conduct for law enforcement purposes. Federal courts have yet to decide whether the government can use statements elicited during the second stage of a two-step interview abroad when prosecuting a terrorism suspect, or whether all such evidence should be suppressed. This Note discusses the boundaries of the two-step interrogation practice as an evidentiary issue in Article III courts, using the investigation and prosecution of Mohamed Ibrahim Ahmed as a case study around which to frame the analysis. The Note first explores the contours of current “clean team” practices in extraterritorial investigations. It then analyzes the current state of U.S. law regarding the admissibility of evidence gleaned from two-step interrogations. Finally, this Note situates the two-step practice within existing doctrine and argues courts should admit step-two evidence because the two-step practice in extraterritorial terrorism investigations occupies a particular niche within current Miranda jurisprudence.
{"title":"Dancing the Two-Step Abroad: Finding a Place for Clean Team Evidence in Article III Courts","authors":"Feifei Jiang","doi":"10.2139/SSRN.2361591","DOIUrl":"https://doi.org/10.2139/SSRN.2361591","url":null,"abstract":"Federal agents often employ a two-step interview process for suspects in extraterritorial terrorism investigations. Agents conduct the first interview without Miranda warnings for the purpose of intelligence-gathering. Separate “clean team” agents then give the suspect Miranda warnings prior to the second stage of the interview, which they conduct for law enforcement purposes. Federal courts have yet to decide whether the government can use statements elicited during the second stage of a two-step interview abroad when prosecuting a terrorism suspect, or whether all such evidence should be suppressed. This Note discusses the boundaries of the two-step interrogation practice as an evidentiary issue in Article III courts, using the investigation and prosecution of Mohamed Ibrahim Ahmed as a case study around which to frame the analysis. The Note first explores the contours of current “clean team” practices in extraterritorial investigations. It then analyzes the current state of U.S. law regarding the admissibility of evidence gleaned from two-step interrogations. Finally, this Note situates the two-step practice within existing doctrine and argues courts should admit step-two evidence because the two-step practice in extraterritorial terrorism investigations occupies a particular niche within current Miranda jurisprudence.","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2013-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68139810","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}
“Fast-track” programs are selectively implemented programs that give illegal reentry defendants a reduced sentence in exchange for a quick guilty plea and broad waiver of procedural rights. Typically found in Southwest border districts overburdened with illegal immigrants, these programs cause grave sentencing disparities because a defendant in a fast-track district will receive a lower sentence than a defendant in a non-fast-track district based simply on the geography of arrest. Circuits are divided as to whether a sentencing court in non-fast-track district is permitted to give a defendant a lower sentence because of this disparity. This Note suggests that the emerging split is the result of a collision between an immigration policy that focuses on prosecutions and developments in federal sentencing law, including United States v. Booker and Kimbrough v. United States. This Note argues that, under advisory Guidelines, district judges should have the discretion to grant lower sentences to avoid the disparity created by fast-track programs because the fast-track sentencing scheme falls short of a binding legislative mandate. Interpretation of Kimbrough provides the essential legal framework allowing a district court to vary from the Sentencing Guidelines. The legal interpretation of Kimbrough and policy considerations of transparency, uniformity, and 18 U.S.C. § 3553(a) resolve the current split.
“快速通道”项目是有选择地实施的项目，给予非法重返社会的被告减刑，以换取迅速认罪和广泛放弃诉讼权利。这些项目通常出现在非法移民负担过重的西南边境地区，造成严重的量刑差异，因为仅仅根据逮捕的地理位置，快速通道地区的被告会比非快速通道地区的被告得到更低的刑期。由于这种差异，在非快速通道地区的量刑法院是否被允许给予被告较低的判决方面，巡回法院存在分歧。本文认为，出现的分裂是侧重起诉的移民政策与联邦量刑法(包括United States v. Booker和Kimbrough v. United States)发展之间冲突的结果。本说明认为，根据咨询准则，地区法官应有权酌情判处较低的刑罚，以避免快速通道方案造成的差异，因为快速通道量刑方案缺乏具有约束力的立法授权。对金伯勒案的解释提供了基本的法律框架，允许地区法院与量刑指南有所不同。Kimbrough案的法律解释以及对透明度、统一性和18 U.S.C.§3553(a)的政策考虑解决了目前的分歧。
{"title":"Lowering Sentences for Illegal Immigrants: Why Judges Should Have Discretion to Vary from the Guidelines Based on Fast-Track Sentencing Disparities","authors":"A. Cho","doi":"10.2139/SSRN.1409107","DOIUrl":"https://doi.org/10.2139/SSRN.1409107","url":null,"abstract":"“Fast-track” programs are selectively implemented programs that give illegal reentry defendants a reduced sentence in exchange for a quick guilty plea and broad waiver of procedural rights. Typically found in Southwest border districts overburdened with illegal immigrants, these programs cause grave sentencing disparities because a defendant in a fast-track district will receive a lower sentence than a defendant in a non-fast-track district based simply on the geography of arrest. Circuits are divided as to whether a sentencing court in non-fast-track district is permitted to give a defendant a lower sentence because of this disparity. This Note suggests that the emerging split is the result of a collision between an immigration policy that focuses on prosecutions and developments in federal sentencing law, including United States v. Booker and Kimbrough v. United States. This Note argues that, under advisory Guidelines, district judges should have the discretion to grant lower sentences to avoid the disparity created by fast-track programs because the fast-track sentencing scheme falls short of a binding legislative mandate. Interpretation of Kimbrough provides the essential legal framework allowing a district court to vary from the Sentencing Guidelines. The legal interpretation of Kimbrough and policy considerations of transparency, uniformity, and 18 U.S.C. § 3553(a) resolve the current split.","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2009-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68176896","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}
Pharmaceutical companies increasingly perform clinical trials in developing nations. Governments of host nations see the trials as a way to provide otherwise unaffordable medical care, while trial sponsors are drawn to those countries by lower costs, the prevalence of diseases rare in developed nations, and large numbers of impoverished patients. Local governments, however, fail to police trials, and the FDA does not monitor trials in foreign countries, resulting in the routine violation of international standards for the protection of human subjects. This Note proposes independent accreditation of those institutions involved in clinical trials--the institutional review boards which oversee trial protocol; the organizations, such as pharmaceutical companies, which sponsor the trials; and the research organizations that conduct the trials. Accreditation, similar to that used in the footwear and apparel industries, would increase the transparency of pharmaceutical trials and would enable the United States government and consumers to hold trial sponsors accountable for their actions.
{"title":"The pharmaceutical industry's responsibility for protecting human subjects of clinical trials in developing nations.","authors":"Finnuala Kelleher","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Pharmaceutical companies increasingly perform clinical trials in developing nations. Governments of host nations see the trials as a way to provide otherwise unaffordable medical care, while trial sponsors are drawn to those countries by lower costs, the prevalence of diseases rare in developed nations, and large numbers of impoverished patients. Local governments, however, fail to police trials, and the FDA does not monitor trials in foreign countries, resulting in the routine violation of international standards for the protection of human subjects. This Note proposes independent accreditation of those institutions involved in clinical trials--the institutional review boards which oversee trial protocol; the organizations, such as pharmaceutical companies, which sponsor the trials; and the research organizations that conduct the trials. Accreditation, similar to that used in the footwear and apparel industries, would increase the transparency of pharmaceutical trials and would enable the United States government and consumers to hold trial sponsors accountable for their actions.</p>","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26073040","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}
When life-sustaining hydration and nutrition is withheld from an incompetent and immobile patient like Terri Schiavo, death comes to the patient by dehydration within about two weeks. Americans should be permitted to arrange for euthanasia at that point, as opposed to merely dehydrating to death, and should be able to incorporate their desire for euthanasia into an advance directive. A state constitutional right of privacy could provide the legal avenue permitting effectuation of such a choice.
{"title":"A line already drawn: the case for voluntary euthanasia after the withdrawal of life-sustaining hydration and nutrition.","authors":"Brett Kingsbury","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>When life-sustaining hydration and nutrition is withheld from an incompetent and immobile patient like Terri Schiavo, death comes to the patient by dehydration within about two weeks. Americans should be permitted to arrange for euthanasia at that point, as opposed to merely dehydrating to death, and should be able to incorporate their desire for euthanasia into an advance directive. A state constitutional right of privacy could provide the legal avenue permitting effectuation of such a choice.</p>","PeriodicalId":43291,"journal":{"name":"Columbia Journal of Law and Social Problems","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"26387484","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}
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