Journal Article•
Questions of Time, Place, and Mo(o)re: Personal Property Rights and Continued Seizure under the DNA Act
TL;DR: In 2010, the United States Court of Appeals for the First Circuit upheld the constitutionality of retaining DNA profiles and samples compelled from convicted felons on supervised release under the authority of the DNA Backlog Elimination Act (DNA Act) as discussed by the authors.
Abstract: INTRODUCTIONOn August 12, 2010, the United States Court of Appeals for the First Circuit upheld the constitutionality of retaining DNA profiles and samples compelled from convicted felons on supervised release under the authority of the DNA Backlog Elimination Act1 (DNA Act).2 Although the First Circuit had previously ruled on the constitutionality of sample collection and analysis under the DNA Act,3 the court's decision in Boroian v. Mueller was its first to address the constitutionality of sample retention. Boroian claimed that the government's indefinite retention of his DNA profile and sample, without "reasonable suspicion of criminal activity," violated his Fourth Amendment right against unreasonable search and seizure, and he requested that his profile be expunged from the Combined DNA Index System (CODIS) and that his sample be destroyed.4 The district court granted the government's motion to dismiss, concluding that use of Boroian's profile in CODIS did not constitute a new search under the Fourth Amendment and that Boroian had not presented any evidence that additional analysis of his sample was presently or imminently occurring.5 The First Circuit granted Boroian's appeal but came to the same conclusions.6The Fourth Amendment generally protects a citizen's personal security in both his person and his effects.7 Under the modern approach, courts assess the constitutionality of a search by considering both the subjective and objective reasonableness of the individual's expectation of privacy.8 Using this framework, the First Circuit rejected Boroian's claim that each use of his profile in the database constituted a separate, unreasonable search; the government's retention of his DNA profile, analogous to the routine retention of fingerprints, did not violate any expectation of privacy that society recognized as reasonable.9 While the government conceded that further use of Boroian's blood sample would constitute a search implicating the Fourth Amendment, the First Circuit concluded that until such use occurred, Boroian had no Fourth Amendment claim.10Although the Boroian decision was the first of its kind in the First Circuit, the case's real novelty presents itself in what the court declined to address. In addition to the arguments discussed above, Boroian claimed that the retention of his blood sample beyond the term of his probation, regardless of any future analysis, constituted an unreasonable continued seizure that independently violated his Fourth Amendment rights.11 As seizure interferes with a person's possessory, not privacy, interests, such claims under the Fourth Amendment open an entirely independent line of inquiry and analysis.12 Boroian failed to present the claim in district court, however, and the First Circuit deemed it waived on appeal.13This Note attempts to address the unanswered question presented in Boroian - whether the government's continued retention of Boroian's DNA sample after he completed probation constitutes an unreasonable continued seizure in violation of the Fourth Amendment. Perhaps more importantly, this Note addresses a critical precursory issue - whether individuals subject to compulsory DNA sampling under the DNA Act retain a possessory personal property interest in their DNA samples after they are extracted. Only if such interest is retained can the retention of Boroian's sample constitute a continued seizure for Fourth Amendment purposes.Part I presents a brief background of the current law. It provides an overview of DNA sampling and profiling in the U.S. criminal justice system, describes the relevant Fourth Amendment challenges to mandatory sampling under the DNA Act, introduces the new challenge presented in Boroian, and discusses the history and development of continued seizure doctrine. Part II addresses the issue of property interests in human tissue and genetic material, arguing that existing case law on the issue is easily distinguishable from - and may even support - property interests in compulsory DNA samples obtained under the DNA Act. …
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01 Jan 2014
TL;DR: In this paper, Cardozo et al. proposed a model for conflict resolution in the context of bankruptcy resolution, which is based on the work of the Cardozo Institute of Conflict Resolution.
Abstract: American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.
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