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  • Going Up In Smoke: The Impacts of the Drug War on Young Black Men

    This paper seeks to shed light on the impacts of drug war policies and marijuana suppression efforts on African American men, and to explore recent changes within the law that may affect this segment of the population. Although discourse regarding the war on drugs is becoming more prevalent, it is important for policy makers, law enforcement, and scholars to recognize the unique circumstances that African American men face in light of the historical discrimination and oppression they have experienced, and to craft narrowly tailored solutions to address the myriad issues they encounter. Unless deliberate action is taken to address these concerns, these men will continue to be systematically excluded from mainstream society, and are at grave risk of cycling in-and-out of the revolving doors of the criminal justice system.

  • Why Are You Calling Me? The Importance of the Do-Not-Call Registry in Protecting the Elderly From Financial Abuse

    This article discusses how the elderly population is growing in the United States. As the elderly population continues to increase, there will be a greater number of people who are vulnerable to financial abuse. The second section examines the most common diseases that affect the mental capacity of the elderly. These diseases place an already vulnerable group in an even more vulnerable position when it comes to financial abuse. The third section examines why the elderly are so often targets of financial abuse. This includes not only dementia, but also the aspects of an elderly person‘s lifestyle that make him or her particularly susceptible. The fourth section examines the use of telemarketing and how it facilitates the financial abuse of the elderly. Telemarketers also take advantage of the elderly lifestyle, increasing the likelihood of abuse. The fifth section examines the Do-Not-Call Registry and its importance in preventing financial abuse of the elderly. The sixth section concludes with possible solutions to protect the elderly from financial abuse.

  • Undermining Patient Autonomy By Regulating Informed Consent for Abortion

    Specifically, this article will consider two recent pieces of legislation that impose restrictive provisions on abortion rights—South Dakota House Bill 1217,31 and Texas House Bill 15.32 The South Dakota law requires women seeking abortion services to first receive counseling at a registered Pregnancy Help Center at a minimum of seventy-two hours before the abortion. The Texas law mandates that women receive an ultrasound at least twenty-four hours before undergoing an abortion, and that the doctor must display the image and make audible the heartbeat, and further describe the images to the patient. This paper will first examine the constitutional challenges brought in response to the South Dakota legislation and analyze them under an undue burden analysis as outlined in Casey, and analyze the constitutional challenges to the Texas legislation under a strict scrutiny analysis. Then, in keeping with the Court‘s moral and ethical approach under Gonzales and the majority‘s concern for such ramifications, this article will examine both the South Dakota and Texas laws from a bioethical standpoint. Namely, this paper will consider the principle of autonomy in medical decision-making and analyze the laws under the scope of this principle. This article argues that the laws are not only unconstitutional by violating the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment, but also fail to uphold the principles of bioethics. In conclusion, this paper will suggest ways to amend the legislation at issue so that the laws are constitutional and ethically sound.

  • Hudson v. Michigan and the Ongoing Struggle for Accountability in Law Enforcement Institutions

    This article will argue that Scalia‘s ―New Professionalism‖ thesis in Hudson was misconceived. Specifically, this article contends that worrisome levels of unaccountability currently exist in our nation‘s law enforcement institutions—enough to undermine Scalia‘s Hudson thesis. This article attempts to address the shortcomings of Scalia‘s ―New Professionalism‖ thesis, as they are important to understanding why internal discipline is insufficient to deter violations of constitutional rights by law enforcement officials. Part I of this article will discuss statistical and anecdotal evidence that tends to disprove Scalia‘s ―New Professionalism‖ thesis. Part II will discuss how the professional relationship between prosecutors and police contributes to a lack of accountability in law enforcement institutions. Part III will discuss three areas of law where legal rules have given law enforcement officials extraordinary protection from liability for official misconduct. Specifically, Part III will discuss first how the U.S. Supreme Court‘s Fourth Amendment jurisprudence has expanded the zone of police conduct that is constitutionally permissible. Second, Part III will discuss how the Supreme Court‘s jurisprudence has helped shield law enforcement officials from civil liability by expanding the scope of Qualified Immunity. Third, Part III will discuss how the adoption of overzealous Assault on a Police Officer (APO) statutes have created incentives that allow misbehaving law enforcement officials to violate citizens‘ rights with impunity under the guise of criminal investigation. Lastly, Part IV will discuss potential paths for reform that will strengthen accountability of our law enforcement institutions in the wake of Hudson v. Michigan.

  • Willowbrook: Precedent or Promise? Modification of Consent Decrees Following the Second Circuit's 1983 Decision in Nysarc v. Carey

    The fairly narrow purposes of this piece are: 1. to examine the apparent lack of impact of the final Willowbrook decision in the Second Circuit Court of Appeals‘ 1983 decision to reverse or significantly alter the nationwide impetus towards community-based, integrated services, and the closure of state institutions during the 16 years between 1983 and 1999 when the United States Supreme Court found many of the same federal rights which were the bedrock of the Decree to be embodied in the Americans with Disabilities Act ("ADA"), the DD Act, and related federal statutes and regulations in the Olmstead case; and 2. to suggest that significant constitutional and jurisdictional questions might remain open to the federal courts even after Olmstead.

  • The Human and Fiscal Toll of America's Drug War: One State's Experience

    This article examines New Jersey‘s unique experience in waging its own war on illegal narcotics. Our approach is chronological. Specifically, we examine three distinct periods of the war—the initial stage from 1986 to 1987, when the architecture of this war was established; the period from 1987 to 1995, when the war was in full gear and problems like racial profiling and prison crowding began to surface; and the period from 1996 to present, when efforts to ameliorate some of the most negative outcomes of the drug war were undertaken. These efforts include, most recently, an effort by Governor Chris Christie—who has declared the drug war "a failure"—to dramatically change the state‘s approach to dealing with addicted offenders. We consider the consequences of these events, and review current efforts to change the course of the state‘s drug war.

  • All Roads Lead From Vietnam to Your Home Town: How Veterans Have Become Casualties of the War on Drugs

    In pursuing that thesis, this Article must first pursue the increasing evidence that the War on Drugs was and always has been antithetical to very real problems our service members suffer upon their return from war that cause them to abuse drugs. Thus, Part I will address the convergence of the Vietnam War and the War on Drugs, which elevated soldiers‘ recreational drug use into a national criminal problem. Part II will examine the scientific literature that connects service members‘ mental health problems—often caused by war experiences—directly with subsequent (and even concurrent) drug abuse. Part III will examine the emerging concerns for returning Iraq and Afghanistan veterans, who may pose even more significant problems with drug abuse than those from Vietnam. And Part IV will examine those solutions that local governments—in tandem with other affected nonprofits—can use to serve these particular citizens. If effective, they can serve as models for the entire community, not just veterans.

  • From the Battlefield to the War on Drugs: Lessons From the Lives of Marginalized African American Military Veterans

    This article examines how the drug war impacts the lives of a rarely studied population: African American military veterans. The article draws on select narratives from respondents‘ detailed life histories documented at length in a recent book by the first author. The richness of these detailed life history interviews allows for further exploration of matters relevant to this symposium‘s focus on America‘s ongoing drug war. Veterans‘ narratives provide a unique view of the drug war in the context of concentrated urban poverty in marginalized communities of color. In this way, our objective is to provide an expanded and novel critique of longstanding drug war politics of "us and them"—a taken-for-granted narrative of "white denial and black blame" that has long been used to rationalize harsh punitive drug laws that have driven unprecedented numbers of poor African Americans into the bondage of mass incarceration. Indeed, as of 2010, "[m]ore young (20 to 34-year-old) African American men without a high school diploma or GED are currently behind bars (37 percent) than employed (26 percent)." It is important, however, to investigate multiple perspectives from the African American community. To this end, we attend to the experiences of unemployed, impoverished African American male military veterans.

  • Curious Consequences of Cannabis Prohibition

    Although the stated rationales for different cannabis policies are interesting, they often distract from clear examinations of current enforcement practices and their measured results. Indeed, the notion of measured results is worthy of examination. Unbiased summaries of these policies are probably impossible. Any author‘s choice of facts to emphasize in a summary rests on an opinion about their import. Authors with identical knowledge of identical facts could summarize them differently simply because of different estimates of their impact and relevance. This predicament has led to policy debates where each side frequently talks past the other rather than addressing comparable issues. We will argue that the variation in the perceptions of import is so vast that a single policy solution for the entire United States has become untenable. Fortunately, the framers of the Constitution foresaw that different locales might hold different values, allowing individual states to fashion their own laws and policies.14 Jurisdictions might make educated decisions about policies when they are most aware of the outcomes associated with current prohibitions.

  • Drug Panics in the Twenty-First Century: Ecstasy, Prescription Drugs, and the Reframing of the War on Drugs

    In Part I of this Article, I offer a concise overview of the history of drug policy in the United States and the common narratives offered to explain its arc. In Part II, I describe the portrayal of a perceived epidemic of Ecstasy9 use at the beginning of the twenty-first century and the current portrayal of a similarly perceived epidemic of prescription drug abuse. In Part III, I document the policy responses to these perceived epidemics and demonstrate that the policy responses were tempered as compared with our responses to similar perceived epidemics in the twentieth century. In Part IV, I argue that this tempered response may be explained in part by how persons linked to these drug epidemics have been portrayed, but that the tempered response—and, perhaps, the more sympathetic portrayals themselves—are likely better explained by growing American ambivalence about the ability of expensive criminal justice measures to combat the problems associated with illicit drug use. I conclude that the shift in response to drug panic stems less from a lack of belief that drugs are a problem and more from weariness brought on by the mounting the costs and consequences of the War on Drugs.

  • Joint Reform?: The Interplay of State, Federal, and Hemispheric Regulation of Recreational Marijuana and the Failed War on Drugs

    In 2012, Washington and Colorado voters surprised the nation by authorizing the recreational use of marijuana. The outcome sent state regulators scrambling to implement the directive and supply a product source, while the federal government faced its own dilemma of whether to tolerate or squelch these state initiatives contradicting longstanding federal law. Surely the Mexican drug cartels (and other illicit growers and suppliers from Canada and within the United States) weighed the prospect for wider reform and its consequences for their multi-billion dollar industry. Although few of these uncertainties have been resolved with any clarity at the time of this writing, below I aim to situate these just-enacted allowances of recreational use within the broader history of U.S. and hemispheric drug regulation, suggesting a framework for additional reform. Having advocated elsewhere for selective legalization of illicit drugs, starting with marijuana, here I address the process of that reform. I suggest the natural order is that states, having first vilified and criminalized marijuana, should lead the way toward rational drug policy. Additionally, informed by that history, I address the appropriate responsive role of the federal government that is busily conducting the failed War on Drugs. Given the interconnectedness of Mexico and the Mexican cartels in the illicit drug trade, and, for Mexico, in the racialized origins of U.S. marijuana prohibition in the first instance, I also situate both Mexican drug policy and the Mexican cartels within U.S. reform that steers us away from the present course of a bloody war on Mexican streets and mass incarceration of communities of color in the United States. Although dismissed by some as intended to launch a stoner jubilee, legalizing recreational use carries the potential to reverse these seemingly intractable trajectories of national and hemispheric violence and oppression. When the smoke clears, we may look back years from now on the moral courage and vision of voters that helped point the nation on a different path from its last 100 years‘ failed journey.

  • Controlled Substances, Uncontrolled Law

    Although an understanding of how the federal government classifies and regulates controlled substances may not have much relevance to many of the hot-button drug policy topics, it is still an incredibly worthy concern in its own right. This essay calls attention to this important but critically under-examined area of drug control by focusing on two key aspects of the CSA: classification and research. Part I introduces the Controlled Substances Act. Part II analyzes the CSA‘s approach to scheduling, and I argue that the CSA‘s open-ended classification scheme fails to adequately control the scheduling of substances and gives the Drug Enforcement Administration nearly unfettered discretion to decide how to classify a drug. Regardless of one‘s views on the wisdom of prohibition, the CSA‘s byzantine scheduling structure should concern anyone with an interest in having a predictable, uniform, science-based approach to drug regulation. Part III of this essay turns to the barriers to research the CSA imposes on Schedule I substances. This section highlights a strange feature of the CSA‘s approach to research. Schedule I substances include both substances that show early (but unproven) promise as medicines and those that we already know have no medical value. Yet, all Schedule I substances are equally—and incredibly—difficult to research. Part IV concludes that it is time for Congress to revisit the administrative provisions of the CSA. Though not as glamorous as issues like the federal response to state marijuana legalization laws, there are compelling reasons to rethink the CSA‘s classification criteria and research restrictions for Schedule I drugs.

  • Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects

    In this Article, we discuss the synergistic relationship between the "wars" on drugs, guns, alcohol, sex, and gambling, and how that relationship has helped illegitimately increase the power of the federal government over the past century. The Constitution never granted Congress the general "police power" to legislate on health, safety, welfare, and morals; the police power was reserved to the States. Yet over the last century, federal laws against guns, alcohol, gambling, and some types of sex have encroached on the police powers traditionally reserved to the states. Congress‘s infringement of the States‘ powers over the "health, safety, welfare, and morals" of their citizens occurred slowly, with only intermittent resistance from the courts. In no small part due to this synergistic relationship, today we have a federal government that has become unmoored from its constitutional boundaries and legislates recklessly over the health, safety, welfare, and morals of American citizens.

  • Canada's Marijuana Medical Access Regulations: Up In Smoke

    The following is a critical examination of Canada‘s medical cannabis laws, divided into three main parts. Part One provides a brief overview of the legal framework of Canada‘s cannabis prohibition. Part Two outlines some evidence of the risks and medicinal benefits of cannabis, to form the factual underpinning for a constitutional analysis under section 7 of the Canadian Charter of Rights and Freedoms. In Part Three, I apply the research literature to the Charter. I suggest a minimum system of medical access, and an ideal system that accounts for broader societal goals. Although there has been a great deal of progress in understanding some individuals‘ legitimate medical need for cannabis, there is still a long way to go before those individuals can use cannabis without the fear of criminal sanction.

  • Tobacco Securitization & Public Spending

    In 1994 the attorney general of the State of Mississippi filed a complaint against the tobacco industry, beginning the frontal legal assault by state attorneys general on the tobacco industry. Other state attorneys general quickly followed, suing the tobacco industry to stop tobacco companies from selling cigarettes to minors, and to recoup alleged cigarette-related Medicaid expenditures. After extensive negotiations, on November 23, 1998, the “Master Settlement Agreement” (MSA) was agreed to and signed between the major tobacco companies in the United States and forty-six state governments, the District of Columbia, and five United States territories. We analyze the designs and choices of states in securitizing their expected MSA payments by selling tobacco securitization bonds (TSBs), and we describe the nature of the securitization transactions from a risk and reward perspective. We also analyze the use of proceeds from securitizations and conduct an empirical analysis of the impact of securitization on tobacco control and prevention spending. Our analysis has important implications for evaluating the MSA, and implications for designing future negotiated settlements implemented through a public budgeting process. The most recent large settlement with substantial, long-term public budgeting implications was the April 2012 $2.5 billion mortgage and foreclosure settlement between state attorneys general and major banking institutions. We believe our analysis of the securitization of MSA payments will provide useful information to policy makers and other stakeholders involved in large, long-term negotiated settlements because they deal with many of the same fundamental public budgeting and finance issues presented by the MSA. We continue the paper with a discussion of the financial obligations in the MSA, and then we describe and analyze tobacco securitization bonds (TSBs).

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