The article presents new field research about police interrogation tactics and training and discusses that research in light of recent social science literature and judicial decisions. Professor Weisselberg argues that the safeguards of Miranda v. Arizona have become ineffective—not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of rulings that have critically weakened Miranda’s protections. He goes on to argue that Miranda is now detrimental to our criminal justice system. Skeptical that the courts can retool Miranda’s procedures, he suggests other possibilities, including legislation.

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government’s recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing the testing resurgence—high rates of HIV/AIDS infection that disproportionately affect women and girls—will remain unresolved. Recognizing that the pending legislative ban on virginity testing will not actually end testing, this Article proposes a way to reframe the debate. I argue that there should be a public discourse on the recognition and realization of a robust right to health and the ethical obligation of government to provide accurate health information and adequate health services. But the government must provide these services in a manner sensitive to cultural differences, rather than focus on a presumed conflict between gender equality and cultural autonomy.

Part I explains the virginity testing procedure, tracks its revival, and discusses complications and concerns associated with testing. Part II situates virginity testing within the human rights debate between universalism and cultural relativism. This Part reviews the literature on gender equality and cultural self-determination and discusses the rights-based arguments advanced by both opponents and proponents of the practice. It considers the pertinent provisions of international human rights instruments and the South African Constitution. This Part further argues that stakeholders in the legislative battle over virginity testing have drawn the wrong battle lines by failing to focus on the unrealized right to health, by viewing culture as unchanging, and by ignoring the broader challenges at play.

Part III proposes that the divergent positions taken by stakeholders in the testing debate can be reconciled not only by shifting toward realizing a substantive right to health, but also by adopting a pragmatistic approach to cultural pluralism and an understanding of both rights and culture as contextual and adaptable. Both these approaches could be enhanced by a human rights discourse informed by “capability theory,” which, through its appreciation of diversity and its emphasis on positive freedoms, would necessarily redirect the focus of government and civil society efforts on the issues underlying the virginity testing resurgence.15 This Article concludes by noting that the resurgence in virginity testing as a community self-help solution signals a systemic failure on the part of the South African government and the international community to adequately address the HIV/AIDS epidemic. This Article offers a pragmatistic approach to addressing the problems associated with cultural pluralism in diverse developing countries. It advances capabilities theory as a way to address the theoretical difficulty that socioeconomic rights present to human rights discourse, and to inform attempts to mediate the apparent conflicts between gender equality and cultural autonomy.

The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers by contracting with foreign companies for the production of goods and the provision of services, the mix of economic, legal, and societal forces that serve to protect consumers changes. Widespread revelations of Chinese-manufactured toxic toys and toothpaste, tainted food and drugs from abroad, and the failure of foreign call centers to protect the privacy of U.S. consumer data all illustrate the challenge for domestic governance. Though international trade in goods and services provides clear economic benefits, it can also frustrate consumer protection efforts.

This paper provides a conceptual framework for understanding the mix of regulatory elements that govern domestic production of goods and services, and for understanding the ways in which international trade changes that mix. Specifically, it distinguishes between two types of domestic regulation—the first targeting the process by which goods are produced and services provided, and the second mandating particular outcomes. Foreign production disables the first type of regulation and weakens the second. Protecting domestic consumers in a globalized market, then, will frequently require the development of “substitutes” – including regulation by foreign governments and private regulators— for domestic forms of governance that are ineffective abroad.

We propose a novel and necessary solution for addressing the threat posed by the foreign production of goods and provision of services to consumer welfare. Specifically, we make the case that the best “substitute” for domestic regulation will often be oversight of safety issues by U.S. partners in global trade. To provide incentives to domestic firms U.S. regulators should make those firms legally accountable for harmful products that make it to the United States Furthermore, they regulations should discriminate between domestic and foreign activity in regulation requiring safe outcomes, imposing higher penalties for violations of safety norms when production has taken place abroad.

This Comment analyzes the arguments both for and against strict report recipient requirements. This analysis reveals that neither an external nor an internal report recipient requirement provides sufficient protection to whistleblowing employees, who face a very real threat of retaliation.9 Studies indicate that whistleblowers choose their report recipient based on a wide variety of practical considerations—including the employee’s status in an organization, the status of the wrongdoer, the organization’s culture, and the significance of the wrongdoing. A rigid report recipient requirement—whether external or internal—cannot match the diversity of situations in which employees find themselves. An unduly restrictive reporting requirement therefore inevitably leaves many good-faith whistleblowers unprotected.
In order to avoid unjust denials of protection, this Comment proposes that states adopt a more open-ended report recipient standard. More specifically, states should provide protection to employees who report either internally to a supervisor or externally to a government body so long as the employee possessed both a subjectively and objectively reasonable belief that the recipient could correct the employer’s unlawful behavior. State laws should also extend protection to employees who report to the media or to other third parties via the Internet when certain conditions are met. This flexible standard would more accurately reflect the variety of situations confronting employees. In addition, the reasonableness requirement would protect employers’ interest in avoiding meritless lawsuits from “chronic complainers”12 and would promote society’s interest in effective law enforcement.

In 1994, Congress passed the Violence Against Women Act (VAWA 1994). VAWA 1994 established the self-petitioning process, which permits undocumented battered victims to adjust their immigration status to Legal Permanent Residents (“LPRs”) in the United States without the aid or knowledge of the abusive spouse. In VAWA 2000, Congress added certain abused immigrants to those eligible for adjustment of status, exempting this class from having to have been inspected, admitted, or paroled into the United States as a prerequisite for adjustment of status. Despite Congress’ attempt to assist immigrant victims of domestic violence, however, U.S. Citizenship and Immigration Services (CIS) still refuses to give full effect to the provisions in VAWA 1994 and the VAWA 2000 amendments.

This comment argues that CIS’s refusal to grant adjustment of status to approved VAWA self-petitioners is clearly wrong for several reasons. First, CIS is blatantly disregarding Congress’ intent by failing to implement the immigration provisions of VAWA 1994 and VAWA 2000. Not only that, but CIS is also circumventing the statutory scheme of VAWA by misconstruing the language and application of several provisions in the INA. In addition, CIS’s policy on this matter produces odd legal consequences for most battered victims, since they will never be able to become LPRs in the United States despite having an approved VAWA application.

There is a growing and misinformed sense in some quarters that the United States and other countries have engaged (and continue to engage) in delegations to international institution that involve a significant threat to domestic sovereignty. Concerns about such delegations come from academics (John Yoo: “Novel forms of international cooperation increasingly call for the transfer of rulemaking authority to international organizations”), prominent politicians (Bob Barr: “Nary a thought is given when international organizations, like the UN, attempt to enforce their myopic vision of a one-world government upon America, while trumping our Constitution in the process. Moreover, many in our own government willfully or ignorantly cede constitutionally guaranteed rights and freedoms to the international community;” Jesse Helms: “The American people see the UN aspiring to establish itself as the central authority of a new international order of global laws and global government.”); and senior government officials (John Bolton: “For virtually every area of public policy, there is a Globalist proposal, consistent with the overall objective of reducing individual nation-state autonomy, particularly that of the United States”).

In our view the perspective evidenced by the above quotes is almost wholly a myth. But it is a myth that persists and continues to attract attention. This Essay seeks to bring forward a more realistic and accurate view of international institutions and engagement. We demonstrate that meaningful delegations of sovereignty are extremely rare and even when they do exist they are carefully cabined. Decision-making authority in all areas remains firmly in the hands of national governments.

This comment concerns the Sixth Amendment Confrontation Clause and seeks to justify why courts consistently find an autopsy report not subject to the right to confrontation under the new test created by the Supreme Court in Crawford v. Washington. The current test turns on a statement’s classification as “testimonial”; testimonial statements require confrontation, but non- testimonial statements do not require confrontation. Unfortunately, the Court didn’t define “testimonial,” leading to four years of holdings by lower courts that were inconsistent – except with respect to autopsy reports, which all courts have characterized as non-testimonial.

This comment starts from that consensus, explaining why autopsy courts are not testimonial because the proper definition of testimonial depends on the involvement of adversarial government officials - officials with the responsibility of investigating and prosecuting crime - and an autopsy report does not qualify under that definition.