University of Colorado Law Review
Volume 71, Issue 1, Winter 1999
FOREWORD
In our first article, Professor Peter Margulies examines asylum adjudicators' responses to democratic transitions within a claimant's country of origin. Professor Margulies concludes that the rapid expansion of democratic processes around the world is contributing to the slow demise of United States asylum law, as adjudicative bodies point to changed country conditions to defeat otherwise valid claims for asylum. He argues that decisions denying asylum claims on the grounds of changed country conditions are flawed in several important respects. They ignore the biases inherent in the United States Department of State reports that are frequently used to refute a claimant's assertion of a well-founded fear of persecution. Additionally, they fail to recognize the dynamic nature of transitions to democracy, and often do not address social conditions leading to persecution even as leaders and laws are changing. Professor Margulies argues that, before denying a claim because of changed country conditions, adjudicators should make specific findings as to the depth of a country's social and governmental institutions, the degree to which the claimant can expect inclusion in society, and the claimant's ability to seek redress for wrongs through the country's governmental processes.
In our second article, Professor Vincent M. Di Lorenzo critically examines the imposition of corporate social obligations by the government. Professor Di Lorenzo argues that several changes during the last century should give the United States cause to reevaluate its past reluctance to impose such obligations. At the center of the analysis are social enterprise theory and chaos theory. Professor Di Lorenzo presents social enterprise theory as the justification for legislative imposition of corporate social obligations. He then applies the theory to the financial services industries. While primarily focusing on the banking industry, the article also offers the view that community obligations are justified for the securities and insurance industries. In the second part of the article, Professor Di Lorenzo offers chaos theory, particularly its concept of responsiveness at the edge of chaos, as an effective mechanism to impose corporate social obligations. After testing this new theory by studying the evolution of community reinvestment legislation in the United States, he recommends that this particular legislation serve as a model for enacting similar structures applicable to other industries.
In our third article, Professor Frank Pommersheim addresses the Federal Courts' teaching and scholarly community regarding the lack of focus on tribal courts. He extends to this community an invitation to enlarge its vision to include the many and varied questions posed by the existence and actions of tribal courts. These issues include: the structural and constitutional relationship of tribal courts to federal courts; practice questions related to abstention, jurisdiction, federal common law, and appellate review; and significant normative issues related to justice, fair play, and pluralism. Professor Pommersheim notes that the failure of the Federal Courts' teaching and scholarly community to engage these issues has the unintended consequence of continuing to marginalize tribal courts. Furthermore, the absence of discussion regarding tribal courts reflects an emerging attitude that he terms "Our Colonialism." That attitude departs radically from the comity and respect that characterizes the concept of "Our Federalism" at the core of the relationship of federal courts to state courts.
Our first comment examines section 1915(g) of the Prison Litigation Reform Act, which denies leave to proceed in forma pauperis to prisoners who have had three or more lawsuits dismissed because the suits were frivolous, malicious, or failed to state a claim. The only exception to section 1915(g)'s sweeping rule is when a prisoner is in imminent danger of serious physical injury. This exception is somewhat illusory, however, as courts have construed it narrowly to include only those rare situations in which the prisoner is still in imminent danger at the time the suit goes to trial or is on appeal. Because Supreme Court precedent has established that prisoners have a constitutional right of access to the courts where fundamental interests are at stake, the comment asserts that section 1915(g) should be subject to strict scrutiny review. After conducting a strict scrutiny analysis, the author concludes that the "three strikes provision" is unconstitutional because it violates the equal protection component of the Fifth Amendment's Due Process Clause.
Our second comment examines the use of DNA evidence in criminal investigations. Specifically, the author argues for the widespread use of "DNA line-ups" in criminal investigations. In order to support this proposal, the author first discusses the history and value of DNA identification. Next, the author examines the Fourth Amendment concerns regarding seizure of bodily tissue and fluids. Supreme Court jurisprudence supports the author's argument that conducting a DNA line-up would require only a reasonable suspicion standard, as long as there are procedural protections for the suspects. Ultimately, the author offers a framework of recommendations for the appropriate use of DNA line-ups and suggests procedural limitations designed to protect suspects' civil liberties.
Our final comment examines the shortcomings of the current application of the Fourth Amendment's exclusionary rule to racially-motivated police investigatory stops. Police investigatory stops, or Terry stops, require a level of reasonable suspicion. Under current police practices, officers often conduct investigatory stops based solely on an individual's race. The courts' application of the Fourth Amendment, however, does not exclude evidence found during such a stop. Therefore, the exclusionary rule cannot offer adequate protection from searches and seizures based upon racial stereotyping. After analyzing how the current application of the Fourth Amendment disproportionately affects minorities in the context of Terry stops, the author suggests that an exclusionary rule under the Fourteenth Amendment's Equal Protection Clause would offer minorities better protection from racially motivated police investigatory stops.
THE EDITORS