Weakening Command Responsibility Doctrine? The Bemba Appeals Judgment

The acceptance of commander’s responsibility is, in effect, acceptance of authority over persons permitted to kill. With that acceptance comes a heavy burden, grown out of practical and moral concerns and reflected in longstanding legal doctrine. At odds with this burden was the judgment of acquittal that the International Criminal Court Appeals Chamber entered in Bemba in 2018. An edited version of an essay originally appearing online as In Bemba, Command Responsibility Doctrine Ordered to Stand Down, this chapter argues for a statutory construction that would better serve the purposes of the ICC and the command responsibility doctrine

A Lawless Judiciary: The Gilded Age and Today

The American journalist Ambrose Bierce, who wrote in the late 1800s, was a fierce critic of the judiciary. He lampooned judges for their defective reasoning, arbitrary decisions, and ignorance of the law; he criticized their practice of legislating from the bench and even exposed their outright corruption. Bierce’s work was highly entertaining—in a satirical, cynical way. Yet, as law professor J. Gordon Hylton explained, “beneath the humor and the bitterness of his work lay a sophisticated understanding of the shortcomings of the late nineteenth-century bench and bar.” This Essay examines Bierce’s criticisms of the judiciary and asks this question: After an intervening century, are his complaints still valid today? Amazingly, after more than 100 years, Bierce’s criticisms are still relevant; in fact, they apply as much to the modern judiciary as they did to that of the Gilded Age. Equally important, Bierce complained with purpose, offering “concrete recommendations” for reform. His primary recommendation—a call to arms for his fellow journalists to expose judicial lawlessness to the public—remains a viable cure for what ails our modern judiciary

State Constitutional Rights to Privacy

This article examines state constitutional rights to privacy, presenting a comprehensive survey of all states that have explicit rights to privacy enumerated in their constitutions. Understanding state constitutional rights to privacy is particularly critical now in the wake of the 2022 U.S. Supreme Court decision Dobbs v. Jackson Women’s Health Organization, which significantly restricted the scope of federal constitutional privacy rights. As states have the authority to independently interpret their constitutions, state constitutional law may provide a path forward for privacy. In lieu of relying on federal rights protection, individuals may now need to turn to state constitutional rights to privacy, and while only eleven states have explicit rights to privacy enshrined in their constitutions, these rights can be powerful. This article examines the right to privacy in these eleven states (Alaska, Arizona, California, Florida, Hawai`i, Illinois, Louisiana, Montana, New Hampshire, South Carolina, and Washington). This article also shows that understanding the role of explicit rights to privacy in state constitutions is important because the lack of a federal constitutional analogue may allow state courts to interpret their privacy clauses as encompassing a more expansive set of privacy rights than what the U.S. Constitution provides. Federal constitutional protection of privacy may be diminishing, but many states have long-established precedent protecting the right to privacy in forms that are not reliant on lockstep federal interpretation of privacy rights. This article contributes to both privacy law scholarship and state constitutional law scholarship. There has not been a scholarly survey of state constitutional privacy rights since 1992, and this article is the first to include New Hampshire, which added an explicit privacy right to its constitution in 2018. In addition to analyzing the development of each state’s explicit privacy right, this article compares state constitutional privacy rights to reveal differences and commonalities that may shed light on how privacy rights develop in state jurisprudence—and how other states may model similar rights to adopt in their own constitutions. In doing so, this article aims to provide a useful resource for scholars, practitioners, judges, and advocates seeking creative avenues to protect privacy rights

The Confined Life: Restrictions on Post-Conviction Sex Offenders Meets Habeas Corpus\u27s In Custody Requirement

Clements v. Florida is a recent Eleventh Circuit decision holding that the court could not hear the habeas petition of a post-conviction sex offender in Florida since he failed to meet the “in custody” requirement for filing a habeas petition. However, the Eleventh Circuit did not consider the land restrictions in place against the petitioner and other sex offenders in Florida. This decision may leave sex offenders without an avenue to challenge the restrictions in place against them. Such restrictions have led to homelessness and poverty leaving sex offenders with no place to work or live, in poverty, as outcasts of society. This Note proposes that had the Eleventh Circuit considered the land restrictions in place against post-conviction sex offenders in Florida, it would have held that sex offenders in Florida, like the petitioner, are “in custody” for purposes of a habeas petition. Such a decision would be following Supreme Court precedent from Jones v. Cunningham, in which it was held that a petitioner is “in custody” when they have great restraints on their liberty in ways that free persons in this country do not face and, would be following the equitable principles which guide the purposes of habeas corpus as the “Great Writ.” This Note offers a unique framework for applying the Jones standard, and argues that the court should apply the following test to determine whether the standard is met: whether a person of average ability, under the conditions in place against the petitioner, could do that which the ordinary person can do in daily life without great hinderance. Under such a test, sex offenders would be “in custody” when faced with the restrictions seen in states such as Florida and Georgia. This is an issue of great importance due to the significant restraints on the liberty of this marginalized group and due to the nature of this issue as an open question yet to be resolved by the courts. This Note contributes to the conversation by offering a framework in which some, but not necessarily all, post-conviction sex offenders may be considered “in custody” for purposes of habeas corpus

Peach State to Global Debate: Election Technology and Voter Faith

The Coffee County voting data breach highlights vulnerabilities in U.S. election technology—prompting a comparison with global voting systems to identify best practices for restoring public trust in democratic processes

The Shadow Pandemic: The Response to Domestic Violence in the Wake of COVID-19 and What We Can Carry Forward

When the COVID-19 virus brought the pandemic to the United States in March of 2020, the legal system was not prepared for the increase in domestic and intimate partner violence that would follow. The United Nations (UN) later identified this social phenomenon as a second pandemic, a “shadow pandemic” that resulted from an increase in stay-at-home orders and a decrease in support services for victims. By the end of 2021, forty-five percent of women globally reported either they themselves or a woman they know had experienced some form of domestic or intimate partner violence since the emergence of COVID-19. One in two women experienced or knew someone who experienced domestic or intimate partner violence during the pandemic, most commonly with women between the ages of eighteen and forty-nine. Stressors, such as financial struggles, unemployment, and lack of access to food, intensified conflicts within the home, causing women to feel less safe while stay-at-home orders were in place. The United States alone saw an 8.1% spike in domestic violence after stay-at-home orders were implemented. Although the early research had not yet determined what the driving force behind the increase was, it was clear that the “cocktail” of COVID-19, forced isolation, and stress from the pandemic created an unstable environment for those exposed to domestic and intimate partner violence. As such, properly funded and staffed domestic violence shelters and survivor support services were critical to ensuring the safety of victims of domestic and intimate partner violence once the pandemic reached the United States. In response, many areas implemented new protocols aimed at providing assistance to individuals suffering from domestic violence. Support services for domestic violence and intimate partner violence victims consistently reported that they were not adequately funded to meet the needs of victims during the pandemic. Either services could not get the technology necessary to make services accessible to everyone or they did not have the funds to hire enough staff to help victims navigate the technology. While the CARES Act granted limited funds, Congress ignored calls to provide funding under the Violence Against Women Act. However, steps taken by victims’ services organizations still effectively assisted those suffering from domestic and intimate partner violence despite Congress’ lack of funding, particularly at the CJFJC in Tacoma, Washington. This Note will examine domestic violence and family violence intervention law prior to the COVID-19 pandemic and the changes it underwent following the implementation of stay-at-home orders in the United States. Moreover, this Note will advocate for a multi-step solution to enhance Georgia victims’ services in three parts. First, Congress should provide additional funding for domestic violence and intimate partner violence intervention programs under the Violence Against Women Act. Second, Georgia should use those funds to implement a similar system to the CJFJC’s model, which would align with principles already set forth by the Atlanta Forum. Lastly, Georgia should adopt a no-questions-asked protocol of aiding victims of domestic and intimate partner violence that incorporates a multi-field perspective

A Governor\u27s Duty to Ask

As some federal constitutional protections contract, state constitutions are becoming an increasingly important source of individual rights. But state constitutional development involves either amendment or litigation, processes both slow and costly. Ten states offer a third path: They empower governors to request advisory opinions from their supreme courts. These governors, however, have rarely exercised this power. This article argues that a governor’s refusal to seek such advice violates the constitutional duty to faithfully execute the law; specifically, the law respecting the separation of powers. Drawing on an empirical analysis, I first show that governors are generally shy to ask for advice, a trend which has only intensified in recent years. I then conduct a survey of state executive power jurisprudence to show that each of the ten states imposes a gubernatorial duty to compel constitutional behavior from the executive branch. That duty necessarily includes a responsibility to determine what the constitution requires. But the task of state constitutional interpretation falls firstly to the state supreme court, not the governor. Ultimately, I argue that respect for the separation of powers—particularly when read in light of the constitutional grant of the advisory power—requires governors to more actively use their power to ask for advice. Recognizing this “duty to ask” not only respects the role of the state supreme court in defining the constitution, it also catalyzes the development of state constitutional law. By inviting courts to define state rights proactively, governors can help build a doctrinal foundation for future litigants and promote the public good

(Trans)forming The “Epidemic of Violence”: LGBTQ+ Police Liaisons and Transgender Victimization

Over the past twenty years, police departments across the country have instated LGBTQ+ liaisons in response to overwhelming rates of violence against the transgender and gender non-conforming community. Despite the creation of this position, rates of transgender victimization remain the same, with transgender people still being 2.5 times more likely to experience violence than a cisgender person. At-lanta Police Department’s LGBTQ+ liaison has existed since 2004, however, in this time, nearly twenty brutal mur-ders of transgender and gender non-conforming individuals have been reported in Atlanta, with three high-profile kill-ings occurring in 2023 alone. Based on these findings, this Note argues that, as they exist now, LGBTQ+ police liaisons and liaison units do not protect the transgender and gender non-conforming community. Not only is the transgender community hesitant to trust law enforcement after decades of police harassment and violence, but police departments also continue to ad-vance problematic policies that put transgender people at risk of revictimization. In reviewing the Atlanta Police De-partment’s protocol, one can find policies that prevent vic-tims from receiving services from the LGBTQ+ liaison unit and questionable search and detention protocols. Ulti-mately, this Note argues that to end the epidemic of violence against transgender people, either serious reforms to LGBTQ+ liaison units must occur, or the community must turn to non-police alternatives