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“Take the Motherless Children off the Street”: Fetal Alcohol Syndrome and the Criminal Justice System
Get PDFRemarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the major fundamentals of criminal law and procedure, especially as it relates to questions of culpability. Under this broad umbrella of topics, we consider questions that may arise in the criminal trial process, such as those related to competency to stand trial (and, to a limited extent, other criminal competencies), the insanity defense, sentencing, and the death penalty. We look care- fully at the way that courts all too often dismiss effectiveness- of-counsel claims in such cases, and the implications of this case law. Finally, we investigate why it is so significant that the caselaw in this area has totally ignored the teachings of therapeutic jurisprudence and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, we hope, can (at least partially) ameliorate this situation
“A Solemn Mockery”: Why Texas’s Senate Bill 8 Cannot Be Legitimized Through Comparisons to \u3cem\u3eQui Tam\u3c/em\u3e and Environmental Protection Statutes
Get PDFOn September 1, 2021, the Texas Legislature enacted the Texas Heartbeat Act, an anti-abortion statute popularly known as Senate Bill 8 (“S.B. 8”). Although many states passed anti-abortion legislation in 2021, S.B. 8 received national attention due to the law’s unusual enforcement mechanism: S.B. 8 empowers private citizens, not state actors, to sue individuals who perform or aid in the performance of an abortion after a fetal heartbeat is detected.
Unsurprisingly, the authors of S.B. 8 received extreme back- lash from the public, and many academics and legal scholars viewed the law’s private enforcement mechanism as an effort to evade judicial review under then-recognized precedent Roe v. Wade. In an effort to defend S.B. 8’s strategic statutory structure, the law’s authors compared S.B. 8’s private enforcement provision to similar provisions found in qui tam and environmental protection statutes. This Note discusses the rationales behind private citizen enforcement pro- visions in qui tam and environmental protection statutes and analyzes why these rationales are not applicable in the abortion context
The News Media Engagement Principle: Why Social Media Has Not Actually Overrun the Limited Purpose Public Figure Category
Get PDFHas the rise of social media ruined the limited purpose public figure category of the First Amendment’s actual malice privilege? Justice Gorsuch believes so—and he has recently invited courts to get rid of it. He argues that the category now includes vast numbers of otherwise private citizens that have “become ‘public figures’ on social media overnight.” With so many people qualifying as limited purpose public figures (and having to overcome the actual malice standard to prevail on a defamation claim), he claims that the category has evolved to provide an unjustified shield for the masses of misinformation-peddlers on social media.
In reality, however, the current state of limited purpose public figure jurisprudence is not so grim. This Article will explain how an extensive review of published opinions issued over the last fifteen years demonstrates that the limited purpose public figure category has not provided a refuge for large numbers of social media fraudsters as Justice Gorsuch suggests. To the contrary, it has been rare for courts to find that an otherwise private figure has become a limited purpose public figure by posting on social media alone. This is not the result of some new or modified social media/online test for the limited purpose public figure, but rather largely due to a commitment to the original (and fundamental) role of legitimate news organizations in the analysis.
The Supreme Court cases that established the limited purpose public figure category indicated that the key decision which transforms a person from private figure to limited purpose public figure is engagement with the news media. It is that signature action which demonstrates that such person has “thrust” herself “to the forefront” of the public controversy in order to actually “influence the resolution of the issues involved.” This Article will: (1) survey the fundamental role that the news media engagement principle played in the limited purpose public figure framework established by the Supreme Court; (2) provide an extensive review of modern case law which demonstrates how courts have prevented an overextension of the limited purpose public figure category through a commitment to the news media engagement principle; and (3) argue why courts should maintain application of the actual malice privilege to statements about limited purpose public figures (even amidst social media’s continued rise) to preserve free speech and free press rights for news and debate about non-governmental persons with influence over important public issues
Gender Violence as a Penalty of Poverty
Get PDFThe matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when seeking housing and employment and encounter other economic difficulties due to their legal status. These circumstances interfere with the tasks of mitigating gender violence.
Economic difficulties are not only after–the–fact–occurrences. Decades of research demonstrate causal relationships between poverty, economic strain, and inequality, on the one hand, and survivor status, on the other. Moreover, studies confirm that economic instability contributes to the very factors that often culminate in offenders’ transgressions. Notwithstanding the IPV discourse that recognizes the entanglement between structural economic conditions and consequences to families and communities, too little economic support either on the front end or the back has been allocated to address these issues.
This essay will address the various economic factors related to survivors and offenders. It critically assesses the ways in which the responses to IPV insufficiently acknowledge economic concerns as a function of a neoliberal economic system that fails to support meaningful social change It offers a brief comparative review of circumstances in Ciudad Juárez, Mexico following the signing of the North American Free Trade Agreement and a hyped–up period of economic liberalization and free trade with a model to address gender violence developed in Cuba after the period of Cuba’s post 1959 revolution through the first decade of the twenty–first century based on a political economy built upon principles of social justice and gender equality. These disparate economic circumstances illustrate the ways in which political economies contribute to or mitigate gender violence
Hard Truths: Cracking Open the Case of Whether Hard Seltzer Is Beer
Get PDFFollowing the line of cases asking questions such as what is a chicken, and is a burrito a sandwich, comes the next deep legal issue, what is beer? How do we determine this seemingly simple question? Do we simply know it when we see (or taste) it? Does it require a mix of specific ingredients or certain processes? Or, if we should rely on definitions, do we look to the dictionary, history, or statutes? In a dispute in the United States District Court for the Southern District of New York, the court is asked to resolve this question. Courts have long used tools of contractual interpretation to determine the meaning of terms to which the parties involved have agreed. Sometimes though, it is not always so easy to determine what the parties meant, even when they provide definitions in the contract. This is further confused when the terms in controversy have historical, scientific, social, industrial, and legal definitions. Through the history and science of beer, principles of judicial contract interpretation, and judicial contract interpretation case law we will explore how the courts determine these issues, and whether there are better ways to answer life’s hard questions
Police Brutality & Unions: Collective Bargaining is the Problem, Not Law Enforcement
Get PDFWhen Derek Chauvin knelt on George Floyd’s neck for more than nine minutes, and when Jason Van Dyke fired sixteen rounds at Laquan McDonald who was walking away from the responding officers, were Chauvin and Van Dyke acting exclusively of their own volition, or were their actions indicative of a deeper, systemic issue? Nearly 60% of law enforcement officers enjoy collective bargaining protections from their police unions, but these protections create a lack of accountability.
Police unions can bargain collectively with police departments because of state legislation, which typically allow for negotiation over matters affecting wages, hours, and terms and conditions of employment. This broad language has allowed many police unions to negotiate contracts that: shield law enforcement officers from liability for misconduct, permit officers to delay being interrogated for up to forty-eight hours following a critical incident, allow police departments to expunge officer disciplinary records after a few years, require all disputes to be settled in binding arbitration by arbitrators often selected by the police union itself, and limit transparency of disciplinary records to the public and to civilian review boards.
One way to solve all these troubling issues is to forbid police unions from bargaining for matters affecting wages, hours, and terms and conditions of employment, or at the very least matters affecting “terms and conditions of employment.” The appendices to this Article include samples of current statutes permitting collective bargaining among police unions, a collection of statutes from all the states that forbid public unions and police unions from collective bargaining, and model statutory language that states may adopt to remedy the aforementioned harmful provisions and ultimately hold law enforcement officers like Chauvin and Van Dyke accountable
“How Dare You Vote!” The Enactment of Racist and Undemocratic Voting Laws to Preserve White Supremacy, Maintain the Status Quo, and Prevent the Rise of the Black Vote – Saying the Quiet Parts Out Loud
Get PDFHistorically the United States has proudly described itself as a “melting pot,” declaring, “Give me your tired, your poor, your huddled masses yearning to breathe free.” However, if the truth is told, the United States of America has never been a melting pot. In a melting pot, the ingredients each contribute something to the pot that equalizes them into becoming a well-seasoned, indistinguishable meal. No one ingredient dominates the mixture, and each adds something that makes the pot richer. This country is more like a gumbo, a dish whose ingredients stand out, where some purportedly add more value to the mix than others. The term “purportedly” is intentional because the cook determines which ingredients are more deserving of being added to the gumbo and which should dominate the flavor, style, and end result. Yes, the United States of America is a gumbo, White supremacy has been the cook for far too long and the maintenance of power has been the main ingredient. America needs some new cooks in the kitchen.
The right to vote has always been an unkept promise as America’s vision of equality has been distorted since its very inception. Many Americans believe the First Amendment is the most important right. The authors of this Article, however; believe that the right to vote is the foundational right because voting allows citizens to engage in the political process. Without participation in the political process, all other fundamental rights are diminished. While voting is touted as the cornerstone of American democracy, it is a promise repeatedly broken. We acknowledge that every person who is a minority in America, suffers from racism; however, but our focus here is on Black America