Vol. 102 Issue 3

Part I begins by describing the persistence of racial bloc voting and discuss- ing why existing assumptions regarding polarization and causality are critical to the current analytical framework used in analyzing cases under Section 2. Part II utilizes past election returns and survey data to probe more deeply into the proclivities and preferences of white and black voters to assess the effects of race on voters’ mental, psychological, and emotional responses to candidates, focusing on the 2008 and 2012 elections. Part III explicates several evidentiary and legal conclusions, returning to the concept of causality. A discussion of the implications for Section 2 explores the conflict inherent in imposing a race-based remedy—the creation of majority–minority single-member districts—due in large part to the outcome of a test that does not properly account for the effect of race on voter behavior.

 

The use of whole-genome sequencing in biomedical research is expected to produce dramatic advances in human health. The increasing use of this powerful, data-rich new technology in research, however, will inevitably give rise to incidental findings (IFs)—findings with individual health or reproductive significance that are beyond the aims of the particular research—and the related questions of whether and to what extent researchers have an ethical obligation to return IFs. Many have concluded that researchers have an ethical obligation to return some findings in some circumstances but have provided vague or context-dependent approaches to determining which IFs must be returned and when. As a result, researchers have started returning IFs inconsistently, giving rise to concerns about legal liability in circumstances in which notification could have potentially prevented injury. Although it is clear that ethical guid- ance should not be automatically codified as law and that crafting ethical obligations around legal duties can be inappropriate, the ethical debate should not proceed unaware of the potential legal ramifications of advancing and implementing an ethical obligation to return IFs.

This Article assesses the legal claims that could be brought for a researcher’s failure to return IFs. The potential for researchers to be held liable in tort is still uncertain and turns largely on a number of factors—including customary practice and guidance documents—that are still in flux. Unlike medical care, which has a well-defined duty into which evolving scientific knowledge about genetics and genomics can readily be incorporated, a researcher’s duty to return IFs is less well defined, making it difficult to determine at the outset whether and when legal liability will attach.

This Article advocates for a clearer, ethically sound standard of requiring that researchers disclose in the informed consent document which approach to offering IFs will be taken. This approach enables participants to know at the outset which findings, if any, will be returned, allows researchers to ascertain when their failure to appropriately return incidental findings will give rise to liability, and enables courts to make determinations that will produce more consistent legal guidance.

 

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness is so vigorously contested on questions of statutory interpretation, with textualists objecting to any reliance on legislative history and even purposivists conceding some risks. Both formal and functional considerations suggest that the enactedness line should be significant for constitutional questions as well. This is not because Congress has some comparative advantage in finding legislative facts more reliably than other governmental institutions, which is pervasively assumed but unrealistic. Rather, Congress’s strongest claim for judicial deference is that legislative findings are highly normative and hence squarely within the legislative power. Recognizing this characteristic of modern fact-finding clarifies and strengthens the claim for deference—but only as to findings satisfying the constitutional requirements of bicameralism and presentment.

 

History matters. It especially matters in the context of interpreting the First Amendment’s Establishment Clause. Since nearly the founding of the republic, jurists and commentators have recognized that the historical understanding of the Establishment Clause should guide contemporary interpretation. James Madison, in one of his final statements on church-state relations, acknowledged that debate on the topic was properly illuminated by history. “[O]n this question,” he wrote in an 1833 letter, “experience will be an admitted umpire.”

Madison’s reliance on history is instructive not merely because of his influence on constitutional matters, but also because he wrote in an era that bears marked similarities to the modern debate on the Establishment Clause’s mean- ing. Madison’s letter was addressed to Reverend Jasper Adams, an Episcopal minister. Adams had recently delivered a sermon to his fellow clergymen arguing that religion, particularly Christianity, was a fundamental pillar of civil society and government and that religion could not flourish without government support. The sermon was largely a foray into a decade-old debate between Thomas Jefferson and Justice Joseph Story. Jefferson had attempted to dismantle the then widely held assumption that Christianity was a part of the received common law; Justice Story offered the main rebuttal. Relying on Story’s Commentaries, Adams argued that “establishment,” as used in the common law of England and the colonies, meant “the preference and estab- lishment given by law to one sect of Christians over every other.” Consequently, the reference to “establishment” in the First Amendment also had a non-preferential meaning. In Adams’s estimation, the disestablishment language in many states’ constitutions only intended to “disclaim all preference of one sect of Christians over another,” and the First Amendment “leaves the entire subject [of religion] in the same situation in which it found it.”

 

This Article is a comprehensive examination of the United States’ practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The Article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The Article (1) provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill lists and extending through the execution of targeted strikes, and (2) provides a robust analytical framework for assessing the accountability mechanisms associated with those processes.

The Article begins by reporting the results of a case study that reviewed hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in nonfiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication.

After explaining how targeted killings are conducted, the Article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assesses accountability along two dimen- sions, creating four accountability mechanisms. After setting forth the analytical framework, the Article then applies it to the targeted killing program. The Article concludes with accountability reforms that could be implemented based on the specified framework.

 

The rule of law is central to our notion of governance and our legal system. The ideal of a knowable, regular, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often despotic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm where competing theories seek to claim the mantle of the rule of law. Although this Article cannot claim to resolve the dispute over the precise meaning or construct of the rule of law, it does seek to consider the role that jury nullification plays in our republican democracy. In so doing, a more nuanced conception of the rule of law emerges—one grounded in the daily realities of the lives the law would govern. This new vision of the rule of law includes, if not at times encourages, the possibility of nullification.

Jury nullification erodes the formal paradigm surrounding law. The audacity of a juror defining law speaks of some small space where law is constructed and given meaning outside the halls of formal government. It suggests a law that is more than the written word of statutes, executive orders, or judicial opinions, but is an interplay between the written word and the citizen’s interpretation of that word. In its very nature, nullification points to a citizen juror as a source of the law itself. It pushes against static constructs of law and seeks to inject community-based ideals of justice and equity into the larger body of law.

In placing nullification within the context of the rule of law, this Article recognizes the democratic function of the criminal jury and asserts that nullification promotes that function. In doing so, it considers how the citizen’s relation- ship with the government has developed in light of changing notions about the criminal jury’s role in the interpretation of law, concluding that nullification is consistent with notions of the rule of law; instead, nullification promotes an active role for the citizen in the construction and deconstruction of the law itself.

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