Raz’s Exclusive Positivism and Judges’ Ability to Make Law: Where Are the Limits?

By: Natalie Guarino

All legal positivists believe that law’s existence is a result of social facts, not normative value. Within legal positivism, there is a split between inclusive and exclusive positivists. According to inclusive positivists, although law’s existence does not depend on its merits, law can include moral principles. According to exclusive positivists, it is not possible to incorporate moral principles into law. Joseph Raz, one of the twentieth century’s most influential legal philosophers, is an exclusive positivist who believes that the content of law can be understood solely through social facts, not moral principles. [1] In effect, he believes that law cannot include dictates like ‘do what is fair’ or ‘do what is just.’ Raz’s argument for exclusive positivism relies on multiple theses and justifications. This post critiques Raz’s assertion that judges are able to make law by relying on moral considerations without incorporating those moral considerations into law.

Self-Esteem, Gender, and Sexuality: How the Alabama Department of Corrections Limits Individuality and Privacy of Inmates

By: David Ware

Section I: Introduction
The Alabama Department of Corrections states that one of its main goals is to promote esteem building amongst the inmates in its custody.[1] Becoming incarcerated already comes with anxiety and hardship, so it would make sense for our prison system to promote the self-esteem of inmates. There are certain variables that are essential to building and maintaining a high self-esteem, which include privacy and individuality. However, when looking at the mandates, rules, and regulations imposed on prisoners, it is impossible for an inmate to fully enjoy privacy and individuality. Through constant searches and seizures, overcrowding, and lack of personal space, privacy is utterly impossible.[2] Additionally, through the use of regulations surrounding hair and clothing, the Department of Corrections inhibits the self-expression of its inmates, thereby limiting their outward expression of individuality.[3] While these rules and regulations surrounding privacy and individuality impact all prisoners, inmates who are not cisgender and/or heterosexual are hit even harder. For queer individuals, outward expression is paramount to becoming their truest selves.[4] Strict rules surrounding clothing and hair significantly impact the self-expression of queer inmates, and thus high self-esteem is difficult to achieve and maintain. Although the Alabama Department of Corrections (ADOC) proposes that one of its main goals is esteem building, its strict rules surrounding individuality and privacy make attaining a high self-esteem virtually impossible for inmates, especially those who are queer.

Judicial Override and Divided Juries: Capital Punishment in Alabama

by: David Ware

Introduction

The Sun Does Shine authored by Anthony Hinton, discusses the criminal justice system in the State of Alabama, specifically addressing the use of capital punishment. Mr. Hinton, an African American man, was convicted of the murder of two restaurant workers in 1985 and was sentenced to death.[1] However, there are two important distinctions to be made about this case. First and foremost, Mr. Hinton was wrongly convicted and was released in 2015, 30 years after his arrest. Secondly, he was sentenced to death by a nonunanimous jury vote of 10-2.[2] Mr. Hinton’s story is a terrifying reality that many in the State of Alabama face, not only was he innocent of the charges brought against him, but he was sentenced to death by majority not unanimity.

Recidivism and Reentry: The Perils of Civil Death

by: Ava Fisher (Prison Writing Competition winner, 2021)

Introduction

The criminal justice system in the U.S. has long represented a response to a very fundamental belief of democracy: the concept of the social contract. Social contract theory is rooted in ancient political theory that inspired the very birth of democracy itself. However, a contemporary understanding that has been implemented in much of western governance draws its influence from the discourse of enlightenment thinkers such as John Locke, Thomas Hobbes, and Jean Jacques Rousseau.[i] This idea of the social contract revealed that in order to receive protection of property and life by the State, individuals had to sacrifice personal liberty. This sacrifice was viewed as the action to forgo man’s intrinsic nature to pursue brute power and war against his brethren in favor of society, community, and governance.[ii]

A New Age of Community Oriented Policing

by: Tristan McCallister

     Policing in America has obviously come under extremely hot water recently as protests and demonstrations raged throughout the summer and in the later months of 2020. Police distrust has skyrocketed and officers have begun to leave departments across the country at alarming rates.  According to Fort Worth Police Officer Association President Manny Ramirez there was a 60% drop in the number of applications to police departments nationally.  (Rozier, 2020) Due to these events, policing is becoming increasingly dangerous, as of July 13, 2020 there was a ”28% jump in felonious officer deaths.” (Hutchinson, 2020). So it is important to note that while there is much need for reform, police don’t really have much reason to flow with public opinion, because public opinion largely doesn’t seem to fall on their side.  Looking back at the general flow of police history from the political model, to the reform model to what is seen today in community oriented policing, the development of COP during the reform era of the 60s devalued the legalistic idea of crime control.  In turn this prompted citizens and police to “develop new strategies and methods to respond to crime and order-maintenance problems.” The professionalization of police seen in this period also went hand in hand with the development of police unions in the 1960s. (Novak, Cordner, Smith, & Roberg, 2009) Perhaps the reforms of 40-60 years ago did not go far enough, or perhaps it is time to update policing to the trends of increasing mental health issues, the decriminalization of drugs, sex crimes and other order-maintence crimes.  So, there is potential for a new much needed era of police reform and it appears America may be entering it, if not in its full swing currently. There are thousands of reforms that can transform American policing and many involve revolutionizing training or education or use of force policies, etc.   Changes in training and education are vital steps for any changing profession and they are reforms that have been made in policing before, and perhaps need to be made again.  But, the promotion of a nationally mandated use of force database, transparency encouraging civilian review boards, and safe alternative crisis intervention teams for the mentally ill are reforms that have never really been instituted before recently and they work to address the problems of accountability, transparency, and safety.  

The Post- Shelby Landscape: The Role of Federalism in Elections

by: Ava Fisher

Introduction

The Voting Rights Act of 1965 (VRA) marked a significant congressional response to racially discriminatory election laws [i]. While the Fifteenth Amendment attempted to enfranchise racial minorities, it lacked means of enforcement [ii]. In response, the VRA established federal authority over state election laws [iii]. This federal enforcement power derived from preclearance through Section 5 of the VRA. States covered under preclearance, determined by the coverage formula of Section 4(b), were required to submit proposed changes to election laws to the U.S. Department of Justice. The coverage formula pertained to states that were found to employ discriminatory election practices, as determined by measures of African American political participation in 1964 [iv]. This practice of preclearance remained in effect from the adoption of the VRA in 1965 until the 2013 ruling of Shelby County v. Holder [v]

Defining Data Privacy: Nickelodeon Consumer Privacy Litigation

by: Claire Sullivan

Concern for the privacy and protection of personal information has long found a place within the United States legal system. In recent decades, however, the discussion surrounding the issue of privacy has taken on new connotations as technology has rapidly broadened the definition and understanding of precisely what kind of information should be regarded as private. As issues regarding Internet usage and privacy have become more common, so have discussions surrounding what kind of legal protections personal information should be afforded, as well as exactly what qualifies as personal information in a digital age. A key factor in such discussions is the existence of online sites and major corporations that draw an extensive degree of profit from Internet users. As culture and markets have adapted rapidly to keep pace with new technological changes, the nation’s legal system has faced struggles in its attempts to catch up.

The MORE Act of 2020

by Lacey Stewart

In the United States, more and more states have begun to legalize marijuana for not only medicinal use but for recreational use as well.[i] That being said, there has been pressure put upon Congress to take action federally.[ii] The House of Representatives recently passed legislation that would end the federal ban on marijuana. The bill is referred to as The Marijuana Opportunity Reinvestment and Expungement Act of 2020 or the MORE Act of 2020.[iii] This bill essentially decriminalizes marijuana on the federal level. Explicitly, it removes marijuana from the list of scheduled substances under the Controlled Substances Act, eliminates criminal penalties for an individual who manufactures, distributes, or possesses marijuana, and takes several other major steps towards criminal justice reform, social justice, and economic development. The bill gathered support from both sides and passed with a 228-164 vote in the House on December 4th, 2020. However, the bill still has to pass in the Senate, which seems to be not as likely as marijuana advocates had hoped. If the bill is not passed in the Senate by January 3, it must be reintroduced.[iv]

New Rules: A Breach of Faith

by Rachel Sharma

In the beginning of May of 2020, Betsy DeVos, Secretary of Education, issued new rules about Title IX regulations of sexual misconduct. These regulations are set to take effect on August 14th of this year. These new changes also apply heavily to college students and allow those accused and accusers of sexual assault, harassment, dating violence, domestic violence and stalking to have more due process protections.[1] Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”[2] The Title IX offices at universities and colleges will face a major change in protocol as most of these rules apply to their work.[3] These changes will not be favorable to anyone they should protect. The rules furthered by Secretary DeVos will change the enforcement of Title IX to combat sexual harassment. While it is a positive change for due process to apply to more people, the other alterations to this policy made by DeVos hinder and hurt the legal system when applied to these crimes in the education system.

The 12-Foot Tall Steel Wall

by Tanner D’Ortenzio

The Visual Artists Rights Act of 1990 is a United States law that bestows certain rights to artists across the country and the works they produce.[1] This law is the first piece of U.S. legislation that formally protected the moral rights of artists and their work. Traditionally a European practice, moral rights (separate from economic rights) essentially maintain the integrity of the artist’s work. While these laws do provide artists with protections in a large number of cases, moral rights legislation does not entail that art ownership is an absolute property right. This article will discuss the history and meaning of VARA and Moral Laws while also covering some relevant cases and future implications of these laws.