Volume 30, Issue 2 (Spring 2023)
Prefatory Matter
Front Matter and Table of Contents
Articles
Hungary, Poland, and Access to EU Funding: The EU Charts a New Course Under The Necessity of Legislation, Conditionality, and The Rule of Law.
Blake S. Rutherford
In recent years, there has been considerable backsliding in Hungary and Poland regarding the rule of law, media plurality, judicial independence, and emergency powers. In response, the European Union (“EU”) exercised its authority under Article 7 of the Treaty of the Functioning of the European Union to withhold COVID-19 relief funds in an effort to compel these nations to realign with EU principles. This article examines the history, consequence, and legal effect of the landmark decision, Hungary v. Parliament and Council. It argues that the EU was on sound legal footing to utilize money as a means to protect the values of the institution. However, the implications of invoking Article 7 are far reaching, which requires the EU to establish clarity as to the “rules of the road” for Member States going forward, particularly regarding the application of rule of law principles.
Markets, Regulation, and Inevitability: The Case for Property Rights in Outer Space
Eliot T. Tracz
In 1967, a number of countries—including the United States— entered into the Outer Space Treaty. This treaty established the fundamental rules by which countries are to conduct themselves in outer space. At the time, there was more concern about the possibility of the Cold War, and thus nuclear weaponry, extending into space and very little consideration of commercial activity, which was largely the province of Science Fiction. Today, commercialization of space includes satellites, private companies contracting for government work, space tourism, and the early stages of testing materials for resource extraction. Interestingly, no international system for the recognition of property rights exists in relation to outer space resources. With the new Artemis space program underway- and its acknowledged intent to lay the groundwork resource extraction- now is the time consider property rights.
Detinue and Replevin: Arresting Children to Enforce Private Parenting Orders in New Zealand Family Court
Carrie Leonetti
This Article argues that the seizures of children authorized by the New Zealand Care of Children Act to enforce private custody orders are unlawful and unjustifiable arrests. These seizures lack in either the substantive limitations of necessity or the procedural protections that should attach to such an intrusive and violent restriction on children’s liberty. It argues that their issuance violates children’s rights under the New Zealand Bill of Rights Act 1990 and international human rights law. It canvasses the history of these arrest provisions and argues that they function as a mechanism for detinue and replevin of children, harkening back to a time when children’s status under the law was that of chattel. It documents how these arrest warrants have increasingly played a central role in the broader problem of the use of Family Court processes by family violence perpetrators to extend their coercive control over their victims and argues that these warrants have become a tool of social entrapment for victims.
Notes
What The United States Could Learn from Norway: Training Police Officers to Be Social Workers, Not Warriors
Liana Brown
This note compares the training of police officers and its consequential effects in the United States versus that of Norway. In the United States, the lack of national training standards, in conjunction with an emphasis on technical skills and weaponry, has further perpetuated the “Warrior mindset.” The “Warrior mindset” reflects the rhetoric that officers are akin to combatants in a war, in which they have a duty to safeguard the rest of civilization against criminals that can strike at any moment. Contrastingly, the training programs for police officers in Norway include a consolidated and robust three-year education program that emphasizes a service-oriented philosophy. This has helped garner public engagement and lasting community partnerships. While by no means is the Norwegian police system one without faults, this Note explores why over one thousand people were killed by police shootings in the United States in 2021, and during that same year in Norway, police shootings of civilians did not seem to be an issue. Further, this Note will contemplate what the United States can learn from Norway to successfully foster a better relationship between police officers and civilians and to better support the general welfare of the public. This note was completed in 2022 and the data and figures cited in this article reflect the information available at the time of writing.
Emergency Powers: Understanding the Benefits While Mitigating the Consequences
Savannah Valentine
This note compares the short-term benefits and long-term consequences of emergency powers using examples from several countries and offers solutions to mitigate those consequences. Historically, emergency powers were only granted in times of true crises. In those circumstances, emergency powers can serve an important purpose: to help the government run smoothly and efficiently. Unfortunately, permanent power grabs are now more common and the standard for what constitutes an emergency has weakened severely, often resulting in civil rights infringements. Possible solutions to this problem include understanding the negative effects of sunset clauses in emergency acts, increased awareness of manufactured emergencies, encouraging a heightened judicial review during emergencies, and clearly defining the scope of emergency powers in constitutions.
Rising Tide: The Second Wave of Climate Torts
Maximillian Scott Matiauda
Fossil fuels and tobacco products share startling similarities. Both enjoy ubiquity, enable their users to keep pace with the ever-increasing demands of civilization, and choke the life out of those who partake and those who merely look on. The comparison extends to legal battles against their respective industries, as evidenced by a new wave of tort litigation in the federal courts of the United States. In a time where climate change was still establishing consensus, states took up the charge against tobacco companies who had successfully defended against private lawsuits over the deleterious health effects of tobacco. Those suits culminated in the Master Settlement Agreement, a Congressional compromise which preserved the tobacco industry while recompensing the injuries of and protecting citizens.
History may repeat itself as a mixture of public and private plaintiffs take to federal court to seek justice for climate damages including rising seas, oppressive weather, acid rain, and polluted air. These plaintiffs cite modern scientific consensus, which points unerringly to producers and emitters of greenhouse gases and carbon byproducts as the culprits. Even more addicting than tobacco, however, is the fossil fuel, and our civilization shows no sign of breaking the habit in the near future. Justice for these plaintiffs and for all affected parties—every human being and other living organism on this planet—may be reached in the United States by learning from the lessons of tobacco litigation. With the right outcome in this crucial climate, we may all yet breathe easier.
Compassion Fatigue in an Infodemic: A Physician’s Duty to Treat in the Age of Misinformation
Alessandra Perez
This Note considers how misinformation has exacerbated the COVID-19 pandemic and the inevitable burden it has placed on the healthcare industry. It explores the intersection between a doctor’s oath of ethics and their right to refuse care by uncovering the obligations that guide their decisions. Justice dictates that physicians provide care to all who seek it, and it is unconstitutional for a physician to refuse to treat patients based on race, ethnicity, gender, religion, or sexual orientation. Even if a patient’s request is antithetical to a physician’s personal beliefs, the unwavering duty to treat generally mandates that physicians treat any patient who has requested his or her services. However, given the way that misinformation and disinformation has aggravated the COVID-19 pandemic, resulting in countless preventable hospitalizations and deaths, this Note will unearth the physical and emotional toll the infodemic has taken on healthcare professionals, explore available remedies to them, and endorse a holistic response modeled upon the collective good.
