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Considering a Domestic Terrorism Statute and Its Alternatives

Francesca Laguardia | January 17, 2020

Recent years have seen an increase in right-wing extremist violence within the United States, which has highlighted the disparities in law enforcement’s handling of “international” as opposed to “domestic” terrorism. Public, legal, and law enforcement commenters have begun calling for a “domestic terrorism statute,” arguing that the lack of such a statute is the largest hurdle in prosecuting domestic terrorists. This Essay explains that the primary cause of the disparity in prosecutions between domestic and international terrorists is not a lack of a domestic terrorism statute but rather the lack of a generalized terrorism statute and the failure to designate right-wing organizations as “terrorists.” Law enforcement pursuing international terrorists rely on these designations and material support statutes far more than on any statutes prohibiting terrorist acts, largely because the acts prohibited are so limited that they are rarely useful, even in the international context.
But the two options of designating domestic terrorist organizations or creating a broad terrorism statute are highly problematic. This Essay discusses the barriers to prosecuting domestic terrorists as terrorists, including the problems with current terrorism statutes in responding to modern, small scale attacks and the tactics used to prosecute international terrorists. It then explores the problems with broad, generalized terrorism statutes that have been passed at the state level and drafted in Congress, and the problems with simply applying the international framework for terrorist designations to domestic terrorists. Finally, it suggests several alternative options to lessen the disparity between the handling of right-wing and other domestic terrorists, and international terrorists.

Author

Associate Professor, Justice Studies, Montclair State University. J.D., New York University School of Law, 2007; Ph.D., New York University Institute for Law and Society, 2012.

Copyright 2020 by Francesca Laguardia

Cite as: Francesca Laguardia, Considering a Domestic Terrorism Statute and Its Alternatives, 114 Nw. U. L. Rev. Online 212 (2020), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1283&context=nulr_online&preview_mode=1&z=15792735007.

The Common Law as Silver Slippers

Crawford, Bridget J. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Professor of Law, Elisabeth Haub School of Law at Pace University.

Copyright 2019 by Bridget J. Crawford

Cite as: Bridget J. Crawford, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 131 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1274&context=nulr_online&preview_mode=1&z=1576710407.

The Promise and Peril of a Common Law Right to Abortion

Cohen, David S. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Professor of Law, Drexel University Kline School of Law.

Copyright 2019 by David S. Cohen

Cite as: David S. Cohen, The Common Law as Silver Slippers, 114 Nw. U. L. Rev. Online 140 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1275&context=nulr_online.

Women are (Allegedly) People, Too

Grossman, Joanna L. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Ellen K. Solender Endowed Chair in Women and the Law & Professor of Law, SMU Dedman School of Law.

Copyright 2019 by Joanna L. Grossman

Cite as: Joanna L. Grossman, Women are (Allegedly) People, Too, 114 Nw. U. L. Rev. Online 149 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1277&context=nulr_online&preview_mode=1&z=1576712252.

The Common Law as a Terrain of Feminist Struggle

Choudhury, Cyra Akila | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Professor of Law, Florida International University College of Law.

Copyright 2019 by Cyra Akila Choudhury

Cite as: Cyra Akila Choudhury, The Common Law as a Terrain of Feminist Struggle, 114 Nw. U. L. Rev. Online 160 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1278&context=nulr_online&preview_mode=1&z=1576712751.

Intellectual Property Infringement and the Right to Say No

Chon, Margaret | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Donald & Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law.

Copyright 2019 by Margaret Chon

Cite as: Margaret Chon, Intellectual Property Infringement and the Right to Say No, 114 Nw. U. L. Rev. Online 169 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1279&context=nulr_online&preview_mode=1&z=1576713168.

The Female Body in the Workplace: Judges and the Common Law

Reyes, Maritza I. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Associate Professor of Law, Florida A&M University College of Law.

Copyright 2019 by Maritza I. Reyes

Cite as: Maritza I. Reyes, The Female Body in the Workplace: Judges and the Common Law, 114 Nw. U. L. Rev. Online 177 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1280&context=nulr_online&preview_mode=1&z=1576713172.

In Search of the Common Law Inside the Black Female Body

McMurtry-Chubb, Teri A. | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Visiting Distinguished Professor of Law, UIC John Marshall Law School; Professor of Law, Mercer University Walter F. George School of Law.

Copyright 2019 by Teri A. McMurtry-Chubb

Cite as: Teri A. McMurtry-Chubb, In Search of the Common Law Inside the Black Female Body, 114 Nw. U. L. Rev. Online 187 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1281&context=nulr_online&preview_mode=1&z=1576713398.

Negative Liberty Meets Positive Social Change

Bernstein, Anita | December 18, 2019

Contributed as part of the Symposium on Anita Bernstein’s The Common Law Inside the Female Body.

Author

Anita and Stuart Subotnick Professor of Law, Brooklyn Law School.

Copyright 2019 by Anita Bernstein

Cite as: Anita Bernstein, Negative Liberty Meets Positive Social Change, 114 Nw. U. L. Rev. Online 195 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1282&context=nulr_online&preview_mode=1&z=1576713406.

Foreign Corruption of the Political Process Through Social Welfare Organizations

Silber, Norman I. | October 4, 2019

Social welfare organizations are prohibited from channeling foreign contributions to favored political candidates. Prospects for enforcing this prohibition, however, are uncertain. Do federal election laws or tax laws provide effective tools? Are state authorities equipped to hold a nonprofit culpable as an entity, or to hold a manager or board member responsible? These questions are important to understand whether the existing rules safeguard the nonprofit community and the fairness of elections. This Essay concludes that federal tax and election rules are likely to be less effective than the authority vested with state attorneys general to monitor and hold accountable nonprofits and their officers and directors who become vehicles for foreign interference in national elections.

Author

Professor of Law, Maurice A. Deane School of Law, Hofstra University; Senior Research Scholar, Yale Law School. Address inquiries to Norman.Silber@Yale.edu.

I am sincerely grateful to Danielle Berkowsky and the editorial board of NULRO for accepting this Essay and strengthening it; and to Bernardo Lopez, Abigail Bachrach, Eugene Hwangbo, Sophie Frishberg, Olivia Vega, and other staff members of the Northwestern University Law Review Online for thoughtful revisions and sensitive editing; thanks to Ashley Ehman, Zachary Gould and Megan Musachio for many insights and diligence; to Pamela Hines and to law librarian Isaac Samuels.

This Essay developed from a presentation to the 2018 Annual Conference of the Association for Research on Nonprofit Organizations and V oluntary Associations. Thanks for helpful comments, criticism, and suggestions from Peter Brann, Evelyn Brody, Putnam Barber, Johnny Rex Buckles, Eugene R. Fidell, Brenner M. Fissell, Eric M. Freedman, Mitchell M. Gans, Daniel J.H. Greenwood, Jennifer A. Gundlach, David C. Hammack, Terri Lynn Helge, Irina D. Manta, Lloyd Hitoshi Mayer, Dana Brakman Reiser, and James E. Tierney.

Copyright 2019 by Norman I. Silber

Cite As: Norman I. Silber, Foreign Corruption of the Political Process Through Social Welfare Organizations, 114 Nw. U. L. Rev. Online 104 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1273&context=nulr_online&preview_mode=1&z=1570196102.

 

Autonomous Vehicles and Police De-escalation

Woods, Jordan Blair | September 9, 2019

Several experts predict that autonomous vehicles will become mainstream in the next few decades. Although autonomous vehicles will have massive implications for law enforcement, the technology has received little to no attention in criminal procedure and policing scholarship. This Essay introduces a new vector into the nascent law and policy discourse on autonomous vehicles and policing—de-escalation and officer safety. Although largely overlooked in this discourse, officer safety is a crucial topic given its powerful role in shaping officer training, departmental policies, and Fourth Amendment law. This Essay argues that autonomous vehicles and their included technologies (for instance, sensory technology, real-time high definition (HD) mapping, and network connectivity systems) have promise to decrease possibilities for escalation during vehicle stops in at least five ways: (1) vehicles will be programmed to follow traffic rules, making traffic stops much less common; (2) sensory technology will prevent vehicles from hitting other vehicles or persons, decreasing motor vehicle assaults against officers; (3) driver’s license requirements could be eliminated, taking the enforcement of driver’s license laws out of the hands of police; (4) DUI law reforms could abolish the need for officers to conduct DUI stops, investigations, or arrests; and (5) sensory technology in vehicles will reduce investigations associated with hit-and-run offenses, and will simplify accident investigations overall. This Essay explores how these potential changes have vast implications for Fourth Amendment law, officer training, and law enforcement policy on motor vehicle stops.

Author

Assistant Professor of Law, University of Arkansas School of Law, Fayetteville. I am thankful for the helpful discussions and suggestions from Maureen Carroll, Beth Colgan, Andrew Crespo, Mary Fan, Andrew Ferguson, Brenner Fissell, Sharon Foster, Will Foster, Brian Gallini, Carol Goforth, Sara Gosman, Aya Gruber, Rachel Harmon, Wes Henricksen, Alex Lee, Cynthia Lee, Jill Lens, Jonathan Marshfield, Jonathan Masur, Tiffany Murphy, Cyndi Nance, Alex Nunn, Susannah Pollvogt, Laurent Sacharoff, David Schwartz, Joanna Schwartz, Nadav Shoked, Annie Smith, Seth Stoughton, Alan Trammell, and Ekow Yankah. I am grateful for the feedback that I received at the Northwestern/Penn/Stanford Junior Faculty Forum for Law and STEM, the Law of the Police Conference at the University of South Carolina School of Law, CrimFest 2018, ABA-AALS 2018 Criminal Justice Section Academic Roundtable, and faculty workshops at Northwestern Pritzker School of Law, Brooklyn Law School, and Cardozo Law School. Thank you to the editors and staff of the Northwestern University Law Review Online for their careful edits and suggestions.

Copyright 2019 by Jordan Blair Woods

Cite as: Jordan Blair Woods, Autonomous Vehicles and Police De-escalation, 114 Nw. U. L. Rev. Online 74 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1272&context=nulr_online&preview_mode=1&z=1568047211.

Alienating Citizens

Frost, Amanda | August 5, 2019

Denaturalization is back. In 1967, the Supreme Court declared that denaturalization for any reason other than fraud or mistake in the naturalization process is unconstitutional, forcing the government to abandon its aggressive denaturalization campaigns. For the last half century, the government denaturalized no more than a handful of people every year. Over the past year, however, the Trump Administration has revived denaturalization. The Administration has targeted 700,000 naturalized American citizens for investigation and has hired dozens of lawyers and staff members to work in a newly created office devoted to investigating and prosecuting denaturalization cases. Using information gathered from responses to Freedom of Information Act requests, legal filings, and interviews, this Essay is the first to describe the Trump Administration’s denaturalization campaign in detail. The Essay then situates denaturalization within the Trump Administration’s broader approach to immigration. Under a policy known as “attrition through enforcement,” the Trump Administration has sought to discourage immigration and encourage “self-deportation.” Although attrition through enforcement is typically described as a method of persuading unauthorized immigrants to leave the United States, the denaturalization campaign and other Trump Administration initiatives suggest that the same approach is now being applied to those with legal status.

Author

Professor of Law, American University Washington College of Law. I received valuable comments on this paper from Jill Family, Alexandra Lahav, Jayesh Rathod, Juliet Stumpf, and the participants in the IV CINETS Conference at Queen Mary University of London and the GLOBALCIT Annual Conference at the European University Institute. Special thanks to Melina Oliverio for her excellent research assistance.

Copyright 2019 by Amanda Frost

Cite as: Amanda Frost, Alienating Citizens, 114 Nw. U. L. Rev. Online 48 (2019), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1271&context=nulr_online&preview_mode=1&z=1565049425.

Are Autonomous Entities Possible?

Bayern, Shawn | June 24, 2019

Over the last few years, I have demonstrated how modern business-entity statutes, particularly LLC statutes, can give software the basic capabilities of legal personhood, such as the ability to enter contracts or own property. Not surprisingly, this idea has been met with some resistance. This Essay responds to one kind of descriptive objection to my arguments: That courts will find some way to prevent the results I describe either because my reading of the business-entity statutes would take us too far outside our legal experience, or because courts will be afraid that robots will take over the world, or because law is meant to promote human (versus nonhuman) rights. As I demonstrate in this essay, such objections are not correct as a descriptive matter. These arguments make moral and policy assumptions that are probably incorrect, face intractable line-drawing problems, and dramatically overestimate the ease of challenging statutorily valid business structures. Business-entity law has always accommodated change, and the extensions to conventional law that I have identified are not as radical as they seem. Moreover, the transactional techniques I advocate for would likely just need to succeed in one jurisdiction, and regardless, there are many alternative techniques that, practically speaking, would achieve the same results.

Housing, Healthism, and the HUD Smoke-Free Policy

Fagundes, Dave,Roberts, Jessica L. | December 31, 2018

#SoWhiteMale: Federal Civil Rulemaking

Coleman, Brooke D. | October 1, 2018

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while expert—are not apolitical actors. This Essay argues that the homogeneous composition of the Civil Rules Committee, not only historically, but also today, limits the quality of the rules produced and perpetuates inequality. The remedy to this problem is straightforward: appoint different people to the Committee. To be sure, the federal civil rulemaking process is but one small part of where and how gender and racial identity matter. Even still, this Essay argues that the Civil Rules Committee members, the Judiciary, and the Bar should demand that the civil rulemaking Committee cease being #SoWhiteMale.

Judicial Mistakes in Discovery

Zambrano, Diego A. | September 11, 2018

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty briefs. This study concludes that the Litigant Hypothesis of noncompliance may have explanatory value.