James W. Fox Jr.
Recent challenges to Florida’s new law criminalizing the provision of abortion services performed after fifteen weeks of gestation force upon the Florida Supreme Court a fundamental conflict between conservative values: adhere to originalist methods of constitutional interpretation and overturn the law, or uphold the pro-life law by either rejecting or ignoring evidence usually considered persuasive or dispositive by originalists. As this Article will show, protection of abortion as set forth in Roe v. Wade was a pre-existing baseline understanding of the right to privacy in 1980 when Florida’s constitutional right of privacy provision in article I, section 23, was adopted. Seven years after the Supreme Court decision, Roe was widely recognized, in both law and public discourse in Florida, as a leading case establishing and giving meaning to the doctrine of a right of privacy. This context is critically important to interpreting the state constitution’s right to privacy provision regardless of which interpretive approach one takes.
This Article uses the history of procedural rules governing
“freedom suits” to elucidate the collection of rights that constitute the Western idea of “individual liberty,” and to make a prima facie case that our current Rules of Civil Procedure are biased against the enforcement of those rights by American minorities.
This history reveals a systemic inequality in procedural rights that both pre-dates race and favors the consolidation of economic and political power over the enjoyment of the rights that supply the foundation for classical liberalism. I argue that collecting demographic data on litigants’ interaction with our Rules of Civil Procedure will yield not only a deeper understanding of this bias, but also potentially transformative insights for our judicial system in a time of needed reform.
Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents that feature the perpetrators’ systemic intent, without focusing on more marginal occurrences. Thus, the hybrid model of hate crime as genocide could appeal to the remaining legislatures that have refused to adopt hate crime statutes, as well as to prosecutors who have had reservations about charging suspects under existing hate crimes statutes. The conceptualization of hate crime as genocide on a state or local level could also encourage local authorities to take action when federal law enforcement is either unable or unwilling to do so.
Timothy M. Harris
Many of the U.S. Supreme Court’s recent decisions have embraced federalism—except in one notable area. Modern Supreme Court Fifth Amendment takings cases have paradoxically diminished the role and importance of state law. Doing so creates uncertainty and unpredictability in determining where private property rights begin and where government’s authority ends. The parameters of a property interest, the applicable venue, and the definition of “background principles” that limit takings claims are all subject to judicially created factors that are outside the realm of state law. Property interests are historically defined by state laws, and takings law is arguably the archetypal realm of state law. But contemporary takings cases contrast with other recent cases where the Court has enthusiastically embraced federalism. The Court has furthered federalism in access to the right of abortion and in the reach of climate change regulation, but not in the core area of property law, which is a traditional bastion of state authority under the Tenth Amendment.
Mitchell X. Chan
Within the United States, many federal statutes and regulations prevent corporations from violating individual human rights, including economic rights. If a corporation commits an act in the United States and that act violates a person’s human rights, federal laws often allow the victim to sue the corporation for compensation in U.S. federal courts, which have jurisdiction over civil claims arising in the United States from federal law. But access to recourse becomes more complicated when an individual seeks to sue a corporation in federal court for an act that occurred outside the United States. This Note examines the jurisdictional obstacles that prevent federal courts from hearing human rights cases brought by foreign plaintiffs who come to the United States after surviving human rights violations in other countries and seek to sue corporations whose conduct contributed to the plaintiffs’ harm.
The Fourteenth Amendment to the U.S. Constitution guarantees that:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person . . . the equal protection of the laws.
But what happens when a state explicitly empowers its citizens to enforce laws that deprive one another of these essential rights?
As a longstanding tradition in American history, citizens have played a role in law enforcement. However, whereas police officers are treated as agents of the state and are therefore subject to the requirements of the state-action doctrine, ordinary citizens are not held to the same standard.
The Texas Heartbeat Act not only empowers citizens to take unprecedented action in enforcing the law, but also provides financial incentives for them to do so. In circumventing the state-action problem by putting enforcement in the hands of private citizens, the statute permits anti-abortion bounty hunting that goes beyond legality and crosses over into vigilantism.
This Note seeks to explain the history of citizen enforcement in American jurisprudence through the examples of environmental statutes such as The Clean Air Act and the Endangered Species Act, draw a line between what demarcates such clauses that satisfy due process from those that do not, and explore solutions, both new and old, that have attempted to bring citizen enforcement in line with the Constitution. The last few sections of this Note will discuss the Texas Heartbeat Act and how state legislatures are starting to use citizen enforcement clauses to harken back to a state of vigilantism.
Jeremy D. Posluszny
This Note will analyze New Jersey statutes and case law concerning planning and zoning powers provided to municipalities and the consideration of adjoining municipalities in land use decisions. It concludes that the state’s current statutory framework fails to effectuate “regional” land use consideration. Part I of this Note explores the background of New Jersey’s enabling statute, the Municipal Land Use Law (“MLUL”), which grants the authority for planning policy and zoning regulation to local government. Part II examines state jurisprudence interpreting New Jersey’s MLUL. This Part will analyze decisions made by the courts upholding the requirement that municipal governments recognize the interests of neighboring towns when enacting or altering their land use policies and identify gaps in the law that may contribute to the increasing friction today. This Part will also discuss the changing demographics of the state since the passage of the MLUL in the mid-1970s. As development increases around the state, a more robust policy is needed to encourage regional land use planning while protecting local decision-making, especially for municipalities that wish to retain present quality of life and character. Finally, Part III proposes a statutory solution to advance the regional impact objective declared in the MLUL by requiring adjoining municipalities to resolve their differences through shared land use decision-making bodies, building upon the regional boards already permitted by the MLUL and recent legislative initiatives to combat large warehouse developments.
To that end, this Note will argue for a duty to reconcile planning policies and zoning regulations between municipalities—especially in areas along municipal borders—through joint proceedings consisting of the acting municipality and its adjoining neighbor(s). As socio-political issues outpace judicial doctrine and decision-making, as well as legislative solutions, action needs to be taken to harmonize and control the regional effect of land use policy by the numerous local governments throughout the state. Importantly, this Note does not argue for top-down state planning jurisdiction but for an expanded duty in the inter-municipal resolution to the “unneighborly” problem that preserves the other dictates of local control.
Trevor J. Cooper
The federal government’s statutory approach to ecosystem management is not adequate to respond to accelerating ecological changes. In its current application, ecosystem management regimes spread too few resources among too many species and deemphasize the role of human activity in both causing and potentially remedying these changes. Although de-extinction is not imminent, its application to these regimes highlights concerns with existing statutory frameworks. In Parts III and IV, this Note will provide an overview and key criticisms of the Endangered Species Act and key invasive species management laws to describe the federal government’s approach to ecosystem management in the new context of climate change. In Part V, this Note will explore the applicability of these statutes to the introduction of genetically engineered and de-extinct species to demonstrate how current ecosystem management approaches can be modified to account for the drastic effects of accelerating climate change. This Note will conclude by providing policy recommendations for updating the federal government’s ecosystem management approach through the Endangered Species Act to allow for more holistic, ecosystem-based management rather than disparate, species-specific regimes. Such an approach would deemphasize the need to protect all species at risk of extinction and instead prioritize species whose survival is absolutely necessary to support an ecosystem. It would also require the acceptance that active human management to a “new natural” is necessary, encouraging the introduction and use of genetically engineered and de-extinct species whose benefits outweigh potential adverse impacts.