Posted by: Patrick Allen Foster | August 19, 2013

Drones, Juvenile Convictions, and Other Papers

1. Rosa Brooks, “Drones and Cognitive Dissonance”: “Ultimately, ‘drones’ as such present few new issues — but the manner in which the US has been using them raises grave questions about their strategic efficacy and unintended consequences. In fact, the legal theories used to justify many US drone strikes risk dangerously hollowing out the rule of law itself.” (H/T: Lawrence Solum.)

2. “Not-So-Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines”: “In the 1980s and 1990s, both the
federal and state governments ‘got tough’ on juvenile ‘super predators.’ Among the broad, retributive policies enacted during this period was the creation of the Career Offender Guidelines, promulgated under the U.S. Sentencing Guidelines. As interpreted by several federal circuits, these Guidelines recommend draconian enhancements based on prior juvenile convictions in adult court. In some circuits, a thirty-dollar theft, committed as a juvenile with a sentence served in a juvenile facility, can lead to a twenty-year enhancement on a later sentence. The solution to this overly severe sentencing practice is more complicated than just adopting the minority interpretation of the current circuit split. Rather, the solution lies in reevaluating the Career Offender Guidelines altogether in light of a recent return to the policies that originally undergirded the juvenile justice system. In Roper, Graham, and Miller, the Supreme Court solidified its policy of treating juveniles differently by striking down the application of harsh sentences to juvenile offenders. This jurisprudential move has been buttressed by recent developments in both psychology and neuroscience. Precluding the use of convictions prior to age eighteen as predicate offenses under the Career Offender Guidelines is consistent with this trend. Amending the Guidelines in the name of workable judicial standards, sentencing uniformity, recent Supreme Court jurisprudence, and developmental science does not set the bar prohibitively high. In fact, similar schemes have already been implemented. To be sure, politicians always fear being labeled ‘weak on crime.’ Nevertheless, as the nation’s highest court continues to chip away at harsh sentences for juvenile offenses, public support for juvenile-friendly policies like the solution proposed in this Note will grow.”

3. Justin Gillette, “Pregnant and Prejudiced: The Constitutionality of the X- and Race-Selective Abortion Restrictions”: “Six states currently restrict a woman’s access to abortion based on her personal motivations for seeking the procedure. These laws, which prohibit abortions that are sought based on the fetus’s sex or race, raise challenging constitutional issues, as the restrictions do not fit neatly into the U.S. Supreme Court’s abortion jurisprudence framework. The constitutionality of these laws is also unclear because no legal challenge has been brought against them. This Comment argues that motive-based abortion restrictions are unconstitutional on several grounds. First, the laws violate the woman’s constitutional liberty rights, which protect the personal beliefs and motivations behind her decision to terminate a pregnancy. Second, the laws conflict with the Court’s holding that governments cannot prohibit abortions before the fetus has reached viability. Third, while the Court’s decision in Gonzales v. Carhart may support abortion restrictions motivated by moral concerns, the interests recognized in Gonzales are distinguishable from those furthered by motive-based restrictions.”

The six states, by the way, are Arizona, Illinois, Kansas, North Dakota, Oklahoma, and Pennsylvania. (H/T: Concurring Opinions.)

4. Joel M. Gora (Brooklyn Law School), “Free Speech, Fair Elections, and Campaign Finance Laws: Can They Co-Exist?”: “A prominent politician once observed that, ‘You can either have free speech or fair elections, but you can’t have both.’ In the view of this article, that has it precisely backwards. In fact, you cannot have one without the other. The election of 2012 tested that thesis because it was the most expensive federal election in history and it contained what many claimed was a great deal of negative campaign speech and rhetoric. This paper argues that, under the First Amendment, election speech is supposed to be ‘uninhibited, robust and wide-open’ and unrestrained in both quantity and content. Accordingly, the increase in campaign spending and activity by candidates, parties, non-profits organizations, labor unions, corporations and so-called ‘super pacs’ is a good thing for free speech principles and democracy, not a bad thing, and efforts to impose greater limitations on campaign funding should be opposed. The same is also true for the supposed increase in the ‘negative’ nature of the content of much campaign speech. There too a proper view of the First Amendment would applaud and encourage such robust debate about core issues of governance. The article concludes by advocating a number of reforms which will make our electoral speech even more vigorous than it is now.” (H/T: Rick Hasen.)

5. Chris Blattman: “Papers I think I would like if I had time to read.”

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