The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could...
By Kevin Marien, Published on 01/23/25
What is religion, and should immigration courts seek to define religion in the context of asylum claims? Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory...
A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s...
Sovereign immunity protects the government from liability arising in suits brought against it by citizens. Though lacking a firm constitutional basis, sovereign immunity has been justified as protecting the public fisc and maintaining the sense of sovereign dignity. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The...
In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an...
Throughout United States history, foreign investment has played a key role in stimulating the national economy and supporting domestic businesses. But foreign investment can also imperil national security, such as by enabling an adversary to enhance its own ‘hard power’ capabilities at the expense of our own. The Committee on Foreign Investment in the United States (CFIUS) was...
Forensic electronic device searches are a formidable weapon in a border protection agents’ arsenal. Agents download the data from an electronic device and may store it for up to fifteen years, where it can be accessed by thousands Department of Homeland Security (DHS) agents with minimal controls. Annually, agents collect the forensic digital data of over 40,000 international...
Modern enhancements of data mining have unfolded in a legal near-vacuum. No extant legal system adequately specifies the property rights in the information elements that make up big data. The miners rely on their technical ability to gather and exploit, without waiting to confirm their entitlement to do so. Innovators have tolerated the legal vacuum because, as a practical matter...
Two decades into the global war on terror, the United States has a vast legal and institutional architecture for prosecuting "international" terrorism. A sprawling global intelligence network, thousands of informants in U.S. communities, and a highly permissive legal regime feed the prosecution of hundreds of Muslim defendants. Despite this intense state response and the panoply...
Is climate change a national security issue? Human security? Ecological security? This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change's national security impacts. This Article argues that there is a growing connection between national security and climate change and a corresponding need...
National security and cultural heritage protection are connected in several ways. Cultural policy as a component of security policy plays a crucial role in promoting social cohesion, diplomatic relations, international cooperation, and regional stability. Instrumental in shaping and promoting national identity, cultural heritage fosters unity among citizens. Safeguarding cultural...
Past efforts to "reimagine
This Article argues that effective national security mandates protection against the spread of infectious diseases, which requires addressing intellectual property (IP) and technology obstacles. Without modification, IP laws can bar the manufacture of needed treatments by anyone besides the IP owner and its licensees. Although there was some recognition during the COVID-19...
Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary...
A resilience agenda is an essential part of protecting national security in a digital age. Digital technologies impact nearly all aspects of everyday life, from communications and medical care to electricity and government services. Societal reliance on digital tools should be paired with efforts to secure societal resilience. A resilience agenda involves preparing for, adapting...
The United States is, by many accounts, facing a renewed risk of major power conflict. This Article considers what the reemergence of this risk may mean for the executive branch's operational understanding of constitutional war powers, specifically as they relate to the use of military force. After outlining the relationship between U.S. strategic concerns and executive branch...
In response to the growing homelessness problem, many state and local governments have developed anti-camping ordinances that criminalize the act of sleeping on public property. Anti-camping laws can devastate individuals experiencing homelessness, especially when alternative resources, such as shelters, are not easily accessible. This Comment addresses the extent to which...
A “knock and talk” is a common police practice involving an officer approaching a home and knocking on the front door to speak with a resident. The knock and talk is a long-recognized exception to the Fourth Amendment’s warrant requirement, making it a powerful police tool to access constitutionally protected areas of the home. But courts have struggled to define the limits of a...
In an effort to deter and punish cities for passing ordinances that conflict with state priorities, states are utilizing a new form of legislative power: punitive preemption. It is generally considered a legitimate use of state power to utilize statutes to preempt local measures and ordinances deemed inconsistent with state policy. State legislatures, however, are attaching...
The distinction between “groundwater” and “navigable waters” has long created legal disputes. The most recent Supreme Court decision to grapple with the boundary between groundwater and navigable waters is County of Maui v. Hawaii Wildlife Fund. Section 301(a) of the Clean Water Act (CWA) prohibits the discharge of any pollutant into navigable waters without a National Pollutant...
As white supremacist violence has substantially increased over the last two decades, calls to combat associated attacks have intensified. This Comment outlines the impact of the events of September 11, 2001 on domestic and international terrorism policy, contextualizing the subsequent invocation of international terrorism charges at significantly higher rates than those of...
Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however...
The humanitarian parole provision of the Immigration and Nationality Act grants the Attorney General discretion to allow people to enter the United States without an immigrant or non-immigrant visa. Despite the sparse language of the provision establishing parole, it has been used in a wide variety of contexts, ranging from one-time grants of entry into the United States for...
For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the...