How the Feres Doctrine Prevents Cadets and Midshipmen of Military-Service Academies from Achieving Justice for Sexul Assault

Sixty-seven years ago, Feres v. United States foreclosed service members from pursuing claims under the Federal Tort Claims Act (FTCA) for “injuries incident to their service.” The progeny of case law that has since developed, the basis for what is known as the Feres doctrine, expanded the scope of what the Feres Court originally articulated as an injury incident to service. Now, cadets and midshipmen of military-service academies who allege that the government (i.e., the administration of military-service academies) was negligent in handling their sexual assaults are precluded from bringing an FTCA claim because their injuries are classified as “incident to their service” under Feres. Cadets and midshipmen occupy an ambiguous status as both service members and students of military-service academies. Although cadets and midshipmen are considered service members under the law, they are also students of military-service academies where they will graduate with a bachelor’s degree and incur an active-duty obligation to serve in the officer corps of the U.S. Armed Forces after they graduate. This Note focuses on the ambiguous status of cadets and midshipmen and argues that they are more akin to students of civilian colleges than active- duty service members. Unlike cadets and midshipmen, civilian students can raise Title IX claims against their universities for student-on-student sexual harassment or assault. By comparing how claims fare for cadets and midshipmen under Feres to the same claims by civilian students under Title IX, this Note argues that cadets and midshipmen do not have the same opportunity to achieve justice as civilian students in like circumstances. This Note additionally examines the legal and policy arguments against extending the Feres doctrine to cadets and midshipmen. Considering the evidence that suggests when superiors allow sexual harassment it may lead to higher instances of sexual harassment and assault in the military ranks, this Note urges Congress to reexamine the FTCA to limit the scope of the judicially made Feres doctrine to exclude cadets and midshipmen from bringing FTCA claims for the negligent mismanagement of their sexual assaults by academy administration

Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States Social Movements and Law Reform

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. “These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without...great resources, continue to have social and political force.” Under both models, one system--either federal or sub-federal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with “one voice” in foreign affairs, posed by “divergent and perhaps parochial state interpretations” of international law. At the revisionist/fragmentation end, the conflict, at its core, is interference with states’ rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form. This article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. This approach links national and subnational governments in a dialogue about rights by “creat[ing] areas of overlap in which neither system can claim total sovereignty.” The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Incorporating human rights norms into local law, state and local initiatives--particularly those that are legally binding--may increase the viscosity of human rights law in the United States. In performing these two important functions, state and local initiatives incorporating human rights standards may facilitate legally enforceable commitments at the national level. Far from adopting the revisionist perspective that states should displace the federal government in implementing, interpreting and enforcing international law, however, this article argues that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level. Moreover, this article stops short of endorsing more ambitious proposals to involve state and local governments directly in the treaty-making process. While recognizing that subnational government units have participated on a limited basis in the World Trade Organization (WTO), in trade negotiations, and in various international environmental conferences, examination of state and local government involvement in such external international arenas is beyond the scope of this article. As for internal domestic incorporation of human rights law, however, a stronger coordination role by the national government is needed because “the Constitution created the institutions of the federal government precisely to avoid such balkanization of foreign policy and international affairs.” An Inter-Agency Working Group (along the lines of theme established under Executive Order 13,107) could play such a coordination role. Ultimately, it is in the federal government’s national interest to become more involved in monitoring and nurturing these local efforts. Under international law, the federal government is responsible for treaty violations of subnational governments and their officials. Even assuming international law eventually establishes liability for subnational governments, national governments will likely continue to be on the hook so long as these governments continue to assert control over their constituent units

Stotts\u27 Denial of Hiring and Promotion Preferences for Nonvictims: Draining the Spirit from Title VII

The author questions whether the dicta in a recent Supreme Court case, Local Union No. 1784 v. Stotts, effectively narrow the scope of relief available under Title VII to non-victims. Specifically, the Court addressed affirmative action and the possible reparations under a Title VII employment race discrimination class action. The dicta in question appear to limit courts\u27 ability to grant relief to non-victims (individuals who were not named parties in an employment discrimination suit) in the form of consent decrees or post-trial injunctive relief. The author examines Supreme Court caselaw on affirmative action, the legislative history of the 1964 Civil Rights Act and Title VII before determining that race-based employment discrimination is inherently a group wrong. Therefore, limiting recovery and injunctive relief to members of the group who were not named parties in the suit betrays the spirit of Title VII and penalizes minority employees and job applicants

Dialogic Federalism: Constitutional Possibilities for Incorporation of Human Rights Law in the United States Social Movements and Law Reform

Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power and determination of customary international law by federal courts. At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. “These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without...great resources, continue to have social and political force.” Under both models, one system--either federal or sub-federal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with “one voice” in foreign affairs, posed by “divergent and perhaps parochial state interpretations” of international law. At the revisionist/fragmentation end, the conflict, at its core, is interference with states’ rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form. This article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. This approach links national and subnational governments in a dialogue about rights by “creat[ing] areas of overlap in which neither system can claim total sovereignty.” The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Incorporating human rights norms into local law, state and local initiatives--particularly those that are legally binding--may increase the viscosity of human rights law in the United States. In performing these two important functions, state and local initiatives incorporating human rights standards may facilitate legally enforceable commitments at the national level. Far from adopting the revisionist perspective that states should displace the federal government in implementing, interpreting and enforcing international law, however, this article argues that the federal government should play a strong leadership role in coordinating information regarding state and local efforts to publicize best practices, to distill lessons learned, and to extract workable norms for possible adoption at the national level. Moreover, this article stops short of endorsing more ambitious proposals to involve state and local governments directly in the treaty-making process. While recognizing that subnational government units have participated on a limited basis in the World Trade Organization (WTO), in trade negotiations, and in various international environmental conferences, examination of state and local government involvement in such external international arenas is beyond the scope of this article. As for internal domestic incorporation of human rights law, however, a stronger coordination role by the national government is needed because “the Constitution created the institutions of the federal government precisely to avoid such balkanization of foreign policy and international affairs.” An Inter-Agency Working Group (along the lines of theme established under Executive Order 13,107) could play such a coordination role. Ultimately, it is in the federal government’s national interest to become more involved in monitoring and nurturing these local efforts. Under international law, the federal government is responsible for treaty violations of subnational governments and their officials. Even assuming international law eventually establishes liability for subnational governments, national governments will likely continue to be on the hook so long as these governments continue to assert control over their constituent units

Presidential Constitutionalism and Civil Rights

As the judicial and legislative branches have taken a more passive approach to civil rights enforcement, the President’s exercise of independent, extrajudicial constitutional judgment has become increasingly important. Modern U.S. presidents have advanced constitutional interpretations on matters of race, gender, HIV-status, self-incrimination, reproductive liberty, and gun rights, and President Obama has been especially active in promoting the rights of lesbian, gay, bisexual, and transgender (LGBT) persons — most famously by refusing to defend the Defense of Marriage Act (DOMA). Commentators have criticized the President’s refusal to defend DOMA from numerous perspectives but have not considered how the President’s DOMA policy fits within a principled commitment to LGBT equality that includes supporting and signing legislation, pursuing regulatory initiatives, filing complaints and other court papers, making formal and informal choices in law enforcement, and using the bully pulpit to sway public opinion. The President’s nondefense of DOMA not only derives normative force from his larger vision regarding substantive equality and individual rights, but it also demonstrates how certain features of the presidency — including accountability and expertise — can be instrumental in promoting equality-based claims. In this way, presidential constitutionalism can engage coordinate institutions — including the Supreme Court — in the development of constitutional law

Limiting the Collective Right to Exclude

For decades, society’s disparate interests and priorities have stymied attempts to resolve issues of housing affordability and equity. Zoning law and servitude law, both of which have been robustly empowered by decades of jurisprudence, effectively grant communities the legal right and ability to exclude various sorts of residences from their wealthiest neighborhoods. Exclusion by housing type results in exclusion of categories of people, namely, renters, the relatively poor, and racial minorities. Although our society’s housing woes may indeed be intractable if we continue to treat a group’s right to exclude with the level of deference that such exclusionary efforts currently enjoy, this treatment is unjustifiable. Courts should acknowledge and consider the broad public and private costs that are created by a group’s unfettered right to exclude. A more balanced approach would weigh individual autonomy to control property and various public harms resulting from community exclusions against legitimate community needs to exclude certain residents and uses. Judicial limits of the collective right to exclude may enable real progress toward fair and affordable housing to be achieved at last