Volume 2014, No. 4


PDF link Policing the Line: International Law, Article III, and the Constitutional Limits of Military Jurisdiction

By Jonathan Hafetz

This Article addresses an important but undertheorized question in existing jurisprudence and scholarship: the proper role of international law in determining the constitutional line between Article III courts and military commissions. This Article makes two principal arguments. First, it explains why, as a normative matter, international law should inform the permissible scope of military commission jurisdiction. Second, this Article describes the functional value of international law in resolving the difficult line-drawing problems between military and Article III courts compared with other possible regulatory tools.

Current litigation over military commission prosecutions at Guantánamo has focused on whether ex post facto principles prohibit military commissions from exercising jurisdiction over offenses such as material support for terrorism and conspiracy that do not violate international law and, therefore, were not prohibited by statute when committed. It leaves open the important question whether the United States can prosecute those offenses under the Military Commissions Act of 2006 based upon conduct that post-dates that statute’s enactment. The U.S.’s position is that such prospective prosecution of non-international law violations is permissible because the offenses violate a separate body of jurisprudence known as the U.S. common law of war. This Article critiques this theory by providing a formal and functional analysis of the continuing relevance of international law as a constitutional limit on military jurisdiction. It further supplies a framework for understanding international law’s role in constitutional analysis more generally.

PDF link The Contraception Mandate and the Forgotten Constitutional Question

By Zoë Robinson

Litigation over the Contraception Mandate—which requires all employer insurance plans to include coverage for contraceptives—is quickly becoming one of the largest religious liberty challenges in American history. The most powerful claim raised by some of the litigants is that their status as “religious institutions” exempt them from compliance with the Mandate. But what is a religious institution, and who gets to become one—and why? Should the University of Notre Dame be treated the same as the Archdiocese of the District of Columbia? Should lobbying group Priests for Life be lumped together with Hobby Lobby, a for-profit corporation? Neither commentators nor courts have considered how to assess which of these types of groups—religious universities, religious interest groups, or religiously-based for-profit corporations—should be labeled as a religious institution, free to ignore the Mandate with no governmental recourse, and which groups should not be categorized as such.

This Article carefully disaggregates the nature of the challengers to the Contraception Mandate and the distinct causes of action pleaded by those challengers. Drawing on earlier work that establishes a unique framework for identifying constitutional religious institutions, this Article applies that framework to the various classes of litigants challenging the Contraception Mandate. The framework captures the subset of institutions which, if empowered with rights beyond those granted in the generally applicable Religion Clauses, will most often and effectively use those rights to benefit society as a whole. The goal of this Article, therefore, is to provide an application of this framework for identifying constitutional religious institutions to the institutional claimants in the Contraception Mandate litigation.


PDF link Pushing the Reset Button on Wisconsin’s Governmental Immunity Doctrine

By Nicholas J. Bullard

The 1962 Wisconsin Supreme Court decision in Holytz v. City of Milwaukee seemed to sound the death knell for the “ancient and fallacious” doctrine of governmental immunity. In Holytz, the court unequivocally rejected broad immunity and embraced a general rule of governmental liability. The Wisconsin Legislature responded by promptly enacting a statute that essentially codified Holytz. Over the course of the next 50 years, however, the Wisconsin Supreme Court resurrected governmental immunity by shielding governmental actors from liability arising out of any “discretionary act.” As a result, broad governmental immunity is once again the rule in Wisconsin. That result is inconsistent with the plain text of the governing statute and the court’s decision to abrogate governmental immunity in Holytz. This Comment explores how the Wisconsin Supreme Court resurrected governmental immunity and suggests how to restore the doctrine to conform to the governing statute.

PDF link A Constructive Problem: Redemption of Unlawful Arrests via Fusion Centers

By Daniel Poniatowski

Two trends in American law enforcement are on a collision course. The post-9/11 era has seen the rise of fusion centers—command hubs that comb electronic databases and provide information instantaneously to arresting officers. Simultaneously, courts across the country have adopted the constructive-knowledge doctrine—a rule that attributes the knowledge in the mind of one officer to all others working together to solve a crime.

The convergence of these trends threatens to distort the standard for lawful arrest, imputing vast amounts of yet-unknown information into the mind of an arresting officer to meet the probable cause threshold. Thus far, federal and state regulation of fusion centers has not done enough to guard against this danger. The situations in California and Wisconsin are illustrative—both states have robust fusion center networks, are located in circuits that embrace the constructive-knowledge doctrine, and do not have sufficient prohibitory regulation in place.

This Comment proposes a two-pronged judicial solution. First, courts should tighten the communication/teamwork requirement of the constructive-knowledge doctrine by requiring that officers exchange actual information about a suspect within a reasonably recent time prior to arrest. Second, courts should exclude evidence seized incident to an unlawful arrest made in negligent reliance on insufficient communication/teamwork or probable cause in the aggregate. This approach would appropriately counteract the pervasive risk of sanctioning unlawful arrests via fusion centers, while preserving the benefits of law enforcement information sharing.