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Volume 16 - Issue 1


The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting

Maril, Robin S. | December 1, 2020

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years. Despite the absence of clear guidance from the Court, the Trump administration has consistently pointed to Trinity Lutheran Inc., v. Comer and Burwell v. Hobby Lobby Stores, Inc. as mandates to protect and enable religious-based discrimination by federal grantees and contractors delivering federal services. In doing so, the administration has dismissed the consensus of legal scholars and commentators regarding the limitations of these opinions. This article concludes that, given the faulty legal support of these cases, all regulations implemented under them are legally specious and should be vacated by courts when challenged. The federal register is no place for “alternative facts.”

Trading Privacy for Promotion? Fourth Amendment Implications of Employers Using Wearable Sensors to Assess Worker Performance

Dery, George M., III | December 1, 2020

This Article considers the Fourth Amendment implications of a study on a passive monitoring system where employees shared data from wearables, phone applications, and position beacons that provided private information such as weekend phone use, sleep patterns in the bedroom, and emotional states. The study’s authors hope to use the data collected to create a new system for objectively assessing employee performance that will replace the current system which is plagued by the inherent bias of self-reporting and peer-review and which is labor intensive and inefficient. The researchers were able to successfully link the data collected with the quality of worker performance. This technological advance raises the prospect of law enforcement gaining access to sensitive information from employers for use in criminal investigations. This Article analyzes the Fourth Amendment issues raised by police access to this new technology. Although the Supreme Court currently finds government collection of a comprehensive chronicle of a person’s life to constitute a Fourth Amendment search, widespread employee acceptance of mobile sensing could undermine any claim in having a reasonable expectation of privacy in such information. Additionally, employee tolerance of passive monitoring could make employer data available to the government through third party consent. When previously assessing employees’ privacy, the Court demonstrated a willingness to accept the needs of the employer and society as justification for limiting workers’ Fourth Amendment rights. Ultimately, then, Court precedent suggests that passive monitoring could erode Fourth Amendment rights in the long term.

Conference Proceeding
Note or Comment

An Unfair Cross Section: Federal Jurisdiction for Indian Country Crimes Dismantles Jury Community Conscience

Paris, Alana | December 1, 2020

Under the Sixth Amendment to the United States Constitution, federal jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under the Major Crimes Act are thus placed in federal district court for a crime that would ordinarily be tried in a local courtroom with a local jury. Instead, the American Indian defendant will receive a jury drawn from the entire federal district, a jury that, by its constitutional guarantee, will reflect a fair cross section of the federal community—one that is mostly, if not entirely, white and non-Indian. This framework is unfair for American Indians. Congress justifies this unique jurisdictional framework by citing the federal government’s own historically exceptional treatment of American Indians as dependent sovereigns, supposedly meant to protect American Indians’ interests. Following that same logic, the federal government should enact legislation to target the fair cross section standard as it applies to American Indians and protect American Indians’ interests in self-governance. Assuming the federal government insists on retaining its jurisdiction in Major Crimes Act cases, it should create a procedural safeguard in cases where the defendant is placed in federal district court based on their designation as an American Indian. This safeguard should ensure that American Indian defendants receive a jury with an indigenous community conscience by locking the number of American Indian jurors that appear on a federal jury trial to at least six, or redefining “community” to mean “Indian country.”

Global Apathy and the Need for a New, Cooperative International Refugee Response

Gleichert, Emily | December 1, 2020

While an increasing number of nations move toward isolationist, nationalist policies, the number of refugees worldwide is climbing to its highest levels since World War II. The United Nations High Commissioner for Refugees (UNHCR) is the international body tasked with protecting this population. However, the office’s traditional solutions for refugees – local integration, resettlement in a third country, and voluntary repatriation – have mostly eluded refugees who spend an average of twenty years in exile. The limitations UNHCR’s structure imposes on the office, specifically in its ability to fund its operations and compel nations to act, have contributed to its failure to effect durable solutions for refugees. The Global Compact on Refugees, proposed by UNHCR and adopted by most United Nations member states, seeks to address these structural limitations. Nonetheless, the Global Compact on Refugees does not fundamentally alter the constraints that currently prevent refugees from accessing durable solutions. The United Nations must work collaboratively across its organs to craft a solution. Moving forward, the United Nations Security Council should use its power under Chapter VII to create a centralized tribunal for refugees that will harmonize protection for refugees, increase burden sharing among nations, and facilitate a durable solution for refugees. The centralized tribunal will only be possible if structured to give nations the correct incentives to buy in. However, if there is successful buy in, the centralized tribunal may address the refugee crisis – and the global apathy toward it – in ways UNHCR has not and cannot.