Volume V, Issue 2 Published!

June 2nd, 2014 No comments

WJLERCOVER
The Widener Journal of Law, Economics & Race is proud to announce that Volume V, Issue II is now available! Click the link, read, and enjoy!

 

Tribal Courts Dealing with Domestic Violence

September 15th, 2014 No comments

By: Molly McDonough

Blog Category: Domestic Violence Issues and the Law, Economics, & Race 

Domestic violence is a growing concern in Native American culture. Forty percent of Native American women will experience domestic violence in their lifetime.  In response, Congress passed the Violence Against Women Reauthorization Act of 2013 (VAWA). Section 904 of the VAWA allows tribal court to prosecute non-Native Americans accused of domestic and dating violence crimes. Prior, some acts of domestic violence would not be prosecuted because of a jurisdiction “loophole” with tribal courts having jurisdiction over only American Indians criminal defendants. As a result, non-Native American perpetrators had absolute immunity from criminal prosecution in tribal courts.

Section 904 “recognizes and affirms tribal courts inherent power to exercise special domestic violence criminal jurisdiction.” Now, tribal courts have jurisdiction over non-Native American defendants for acts of domestic violence, dating violence, and violation of protective orders that occur on Native American land. However, this jurisdictional power is limited. Tribal courts will not have jurisdiction if neither the defendant nor the victim is Native American. Also, non-Native American defendants must have significant connections to the tribe. Section 904 is constructed to apply only to non-Indian defendants who have voluntarily and knowingly established significant connection to the tribe.

Tribal courts that choose to exercise jurisdiction under Section 904, must provide the defendant with “ all applicable rights under this Act, an impartial jury reflecting a fair cross section of the community that does not systematically exclude non-Native Americans, all other rights whose protection is necessary under the Constitution of the United States, and for offenses punishable by imprisonment, all rights under existing 25 U.S.C. § 1302(c).” Section 908 of the VAWA delays section 904 effectiveness until March 7, 2015. For the time being, Tribal courts that are interested in exercising this jurisdictional power and have safeguards for non-Indian defendants rights may be admitted to a pilot program.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.  

Source:

Indian Law – Tribal Courts – Congress Recognizes and Affirms Tribal Courts’ Special Domestic Violence Jurisdiction over Non-Indian Defendants. – the Violence Against Women Reauthorization Act of 2013,127 Harv. L. Rev. 1509 (2014).

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Freedom of Religion? Not if You are a Practicing Muslim and Live in Newark, New Jersey

September 8th, 2014 No comments

By: Marcia Leach

Blog Category: Religion & Race

Hassan v. City of New York, filed on June 6, 2012 in federal court in New Jersey, was brought on behalf of several New Jersey plaintiffs who were targeted and surveilled by the New York Police Department (NYPD) solely because of their religious affiliation.  Among the eleven Plaintiffs are a decorated Iraq war veteran, current and former Rutgers University students, the parent organization of the Muslim Student Associations of Rutgers University (Newark and New Brunswick campuses), a coalition of New Jersey mosques, and the owners and proprietors of a grade-school for Muslim girls.  The plaintiffs share just one characteristic: their Muslim affiliation.  That fact alone led the NYPD to target and surveil them in clear violation of U.S. constitutional principles.

On Febuary 20, 2014, U.S. District Judge William Martini held that plaintiffs in Hassan v. City of New York lacked standing because they alleged no injury in fact, which “requires more than a subjective chill, and even if the plaintiffs had met that element, they had not shown causation.”  Martini found that the stigma, career damage and other harms alleged did not flow from the surveillance itself but from the Associated Press’s unauthorized disclosure of the spying program.  Further, Martini held, the plaintiffs failed to state a religious discrimination claim because “the more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.”

Martini reasoned that because the Sept. 11 attacks were perpetrated by 19 Muslims, who were members of al Qaeda “[t]he police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.  While this surveillance Program may have had adverse effects upon the Muslim community after the Associated Press published its articles; the motive for the Program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.”  Additionally, Martini pointed to the fact that the New Jersey Attorney General’s Office announced in May 2012 that a fact-finding review of intelligence-gathering in New Jersey by New York police revealed no evidence that it broke any of the state’s civil or criminal laws.

The New Jersey Muslims will continue to fight for the right of Religious Freedom by appealing the dismissal of their federal court suit.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race. 

Source:

Hassan v. City of New York, 2014 WL 654604 (D.N.J. 2014).
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Will Increased Crude Oil Rail Transportation Affect Rail Safety?

September 1st, 2014 No comments

By: Caitlin Conk

Blog Category: Economics of Environmental Regulation

The safety of rail transportation of crude oil is a hot topic in California, as it will soon see a surge in the number of trains carrying crude oil into the state from North Dakota and Canada. The California Senate Environmental Quality Committee and Natural Resources Committee has raised significant questions regarding the best way to regulate oil by rail in California, how to foster inter-agency cooperation and ensure adequate emergency response in cases of accidents.

In just two years, California has seen a 4 million barrels of oil by rail increase, with a projection of up to 150 million barrels by 2016, according to Energy Commission data. While the increase is economically favoring, it comes with serious concerns of regulations with regards to railroad operations and safety. Although California’s Public Utilities Commission is responsible for regulating railroad safety, the Federal Railroad Safety Act preempts state law raising questions as to whether the existing federal regulations are stringent enough and what states can do to protect public health and the environment.

Source:

Jayni Foley Hein, As oil by rail gains momentum, is California on track to protect human health and the environment?, The Berkeley Blog, http://blogs.berkeley.edu/2014/03/31/as-oil-by-rail-gains-momentum-is-california-on-track-to-protect-human-health-and-the-environment.

Statelessness in the Dominican Republic and What It Says About International Law

August 25th, 2014 No comments

By: C. Nicholas Konetski 

Blog Category: International Law & Race

For most Americans, proving their citizenship is not a difficult task. For example, if I want to prove that I am a U.S. citizen, I can simply show my birth certificate or passport. If I cannot find either of these documents, I can obtain a certified copy from the appropriate agency. This task, however, would be a lot harder if the U.S. Supreme Court issued a ruling that required these agencies to deny my request for a copy and inform me that those documents should never have been issued to me in the first place. A similar situation is essentially what is happening to thousands of Haitians with Dominican citizenship.

As a result of a recent decision by the highest court in the Dominican Republic, over 200,000 Dominicans of Haitian descent could lose their citizenship. The Court’s ruling is based on the claim that their birth certificates are invalid due to “irregular circumstances.” The background for this decision dates back almost 100 years, during a time when thousands of Haitians migrated to the Dominican to work in the sugar industry. Until recently, birthright citizenship, or jus soli, was followed by the Dominican government. Under jus soli, any child born to a Haitian migrant worker was automatically a citizen of the Dominican Republic.

Over the next decade, Haitians enjoyed both citizenship and work. Naturally, they developed many ties to the Dominican Republic. Towards the end of the 20th century, the sugar industry came to a halt, leaving thousands of Haitians without employment. This surplus of idle workers sparked a feeling of animosity among the Dominican people towards the Haitian race. In response to these feelings, the Dominican government informally began denying citizenship to Haitians that were born there and deportations began to rise. A few years later, in 2007 and in 2010, the government reformed its constitution to no longer accept birthright citizenship. Even worse for the Haitian migrants, the government decided to apply these reforms retroactively. This meant that after 1929, any citizen who obtained their citizenship through jus soli was not actually a citizen because their birth certificate was given under “irregular circumstances.”

The effects of these constitutional reforms and the recent high court decision are being felt by thousands of Haitians who have now become stateless. Most of these people, having spent their whole life in the Dominican Republic, have never even been to Haiti and are unable to obtain Haitian citizenship. Furthermore, any child born during this time is unable to be registered and therefore may not have even have documentation to prove their existence.

The decisions of the Dominican government have been heavily criticized on an international level. The Inter-American Commission has had these issues brought to its attention and has spoken out against the government’s actions. In addition, the United Nations (UN) High Commissioner for Refugees, as well as the U.S. Department of State, have both denounced the unjust treatment of these Haitians. Still, nothing has been done to effectively solve the problem.

The injustices that are occurring in the Dominican are just another example of the shortcomings of International law. The right to nationality, which has seemingly been lost for these Haitians, is one that is guaranteed by the Inter-American Convention. Unfortunately, because of under-funding and the lack of an enforcement mechanism, the Inter-American System cannot adequately protect that right. Furthermore, international cases and complaints often move too slowly to evoke change, which has been a problem in some of the cases against the Dominican government. The various treaty bodies within the UN can issue reports and comments, but while they are persuasive, they are not binding.

Thus, there is a problem not only with the situation in the Dominican Republic, but also with the ability of the international community to effectively respond to these problems. In order to put an end to the racial and ethnic discrimination by governments throughout the world, international law, as well the organizations that have a duty to uphold it must be strengthened.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race. 

Sources:

Veronica Aragón, Statelessness and the Right to Nationality, 19 Sw. J. Int’l Law 341 (2013).

Julia Harrington Reddy, Don’t be Fooled by the Dominican Republic’s Judicial Laundering of Racism, Open Society Justice Initiative (Mar. 11, 2014), available at http://www.opensocietyfoundations.org/voices/dont-be-fooled-dominican-republicsjudicial-laundering-racism.

Natalia Lippmann Mazzaglia & Pedro F. Marcelino, Migratory Policy as an Exclusionary Tool: The Case of Haitians in the Dominican Republic, 3 Laws 163 (2014).

Mark Kurlansky, Dominican Republic Makes Racism the Law, Truthdig: Drilling Beneath the Headlines (Jan. 6, 2014), available at http://www.truthdig.com/report/item/dominican_republic_makes_racism_the_law_20140106.

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Domestic Violence: An Issue Affecting All Communities

August 18th, 2014 No comments

By: Sarah Phillips

Blog Category: Domestic Violence Issues and the Law, Economics, & Race 

Domestic violence is an issue no matter what race or economic class an offender is placed in.   There is a myth that domestic violence only occurs in non-white communities and lower-class levels.  This is not the case.  In fact, domestic violence occurs all levels of people with no bias towards their race or economic level.   The difference between the different sets of communities is the help that they seek.  While affluent more middle to upper-class individuals have the means to find private help, lower class individuals are more likely to utilize the public agencies and police available to the public at large.   The availability of resources and subsequent handling of the circumstances surrounding the domestic violence allows for the public to come to wrong conclusion that domestic violence only affects those that are in lower-class communities and non-white.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.  

Source:

Boston University, BUPD Online, Domestic Violence Myths (Mar. 30, 2014 12:17PM), available at https://www.bu.edu/police/prevention/domestic_violence_myth.htm.

The Influence of Race and Religion on Voting Trends in the United States

August 11th, 2014 No comments

By: Olivia Italiano

Blog Category: Religion & Race

Over the past several decades, the United States has seen significant cultural and societal shift of increased racial and ethnic diversity, as well as a stark divide of moral and religious values.  In the political sphere, Democrat and Republican supporters are drastically more divided by religious beliefs, ideological orientations, and race than in the past.  Since the 1960s, the racial and ethnic population of the United States has changed drastically, resulting in more non-white voters, including African American, Asian American, and Hispanic voters.

Despite significant improvement in race relations over the last 50 years, American society continues to reflect racial inequality with respect to economic, educational, and employment opportunities. For example, minorities overwhelmingly subjected to inferior housing, higher unemployment rates, and dramatically lower incomes than white Americans.  Unfortunately, minority voters are far more likely to experience prejudice and discrimination on behalf of public and private bureaucracies.

Differing life experiences and disproportionate opportunities are demonstrated through contrasting views on political issues, party identification, and voting behavior.  Morality based issues including abortion and same-sex marriage are frequently rooted in deeply held religious beliefs.  However, religion is not the sole or even primary factor that racial and minority groups rely on when voting.  For example, in the 2012 Presidential Election, the majority of Latino registered voters favored Obama, and stated that they identify with or lean towards the Democratic Party, regardless of their religious beliefs.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race. 

Sources:

Alan I. Abramowitz, How Race and Religion Have Polarized American Voters, (Jan. 20, 2014), available at http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/01/20/how-race-and-religion-have-polarized-american-voters.

Additional Factors: Gender, Age, Religion, Race, and Ethnicity, available at https://www.boundless.com/political-science/political-participation-and-voting/why-people-vote/additional-factors-gender-age-religion-race-and-ethnicity.

Latinos, Religion, and Campaign 2012, (Oct. 12, 2012), available at http://www.pewforum.org/2012/10/18/latinos-religion-and-campaign-2012.

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