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Full-Text Articles in Law and Society

The New Family Freedom, Emily J. Stolzenberg Jul 2018

The New Family Freedom, Emily J. Stolzenberg

Boston College Law Review

In family law, “autonomy” has traditionally meant freedom from state interference in one’s intimate life. This Article describes an emergent, libertarian vision of autonomy as property rights that also demands freedom from other family members. This conception, “choice about obligations,” holds redistribution of resources between intimates to be illegitimate unless the richer party “chose” to take on financial obligations ex ante by ceremonially marrying or formally contracting. But as more people conduct their intimate lives outside these legal institutions, choice about obligations increasingly collides with another, more fundamental, family law principle: the imperative to “privatize dependency,” i.e., to ...


Is Government Really Broken?, Cary Coglianese Jul 2018

Is Government Really Broken?, Cary Coglianese

Faculty Scholarship

The widespread public angst that surfaced around the 2016 presidential election in the United States revealed that many Americans believe their government has become badly broken. Given the serious problems that continue to persist in society—crime, illiteracy, unemployment, poverty, discrimination, and more—these beliefs in a government breakdown are understandable. Yet a breakdown is actually far from self-evident. In this paper, I explain how diagnoses of governmental performance depend on the perspective from which current conditions in the country are viewed. Certainly when judged against a standard of perfection, America has a long way to go. But perfection is ...


The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell Jul 2018

The Texas Standards For Appellate Conduct: An Annotated Guide And Commentary, Gina M. Benavides, Joshua J. Caldwell

St. Mary's Journal on Legal Malpractice & Ethics

The legal profession is bound by ethical rules that govern and guide our conduct and actions as lawyers. One of the under-appreciated, but profoundly important set of guidelines is the Texas Standards for Appellate Conduct. These Standards serve as an excellent practice guide for appellate practitioners and appellate courts and as a model code of conduct for the Bar as a whole.

The goal of this Article is to dissect the Texas Standards for Appellate Conduct and provide useful commentaries for the readers to better appreciate and understand each element of the Standards. The commentaries provide direct case examples and ...


"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill Jul 2018

"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both ...


The Gm Food Debate: An Evaluation Of The National Bioengineered Food Disclosure Standard And Recommendations For The United States Based On Food Justice, Courtnee Grego Jun 2018

The Gm Food Debate: An Evaluation Of The National Bioengineered Food Disclosure Standard And Recommendations For The United States Based On Food Justice, Courtnee Grego

Seattle University Law Review

This Note aims to identify the food justice issues caused by the National Bioengineered Food Disclosure Standard (NBFDS) and make recommendations for the United States to minimize these concerns. The NBFDS requires the United States Department of Agriculture (USDA) to draft regulations establishing a mandatory disclosure standard for GM food and ultimately, will require a disclosure on the package of any GM food sold in the United States. Part I of the Note provides an overview of the genetically modified (GM) food debate. Part II reviews the NBFDS. Part III explains the food justice implications of GM food production. Part ...


The Gm Food Debate: An Evaluation Of The Nationalbioengineered Food Disclosure Standard Andrecommendations For The United States Based On Foodjustice, Courtnee Grego Jun 2018

The Gm Food Debate: An Evaluation Of The Nationalbioengineered Food Disclosure Standard Andrecommendations For The United States Based On Foodjustice, Courtnee Grego

Seattle University Law Review

This Note aims to identify the food justice issues caused by the National Bioengineered Food Disclosure Standard (NBFDS) and make recommendations for the United States to minimize these concerns. The NBFDS requires the United States Department of Agriculture (USDA) to draft regulations establishing a mandatory disclosure standard for GM food and ultimately, will require a disclosure on the package of any GM food sold in the United States. Part I of the Note provides an overview of the genetically modified (GM) food debate. Part II reviews the NBFDS. Part III explains the food justice implications of GM food production. Part ...


Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen Jun 2018

Rape By Fraud: Eluding Washington Rape Statutes, Michael Mullen

Seattle University Law Review

Existing Washington law does not sufficiently safeguard its citizens from “rape by fraud,” an action whereby a person obtains sexual consent and has sexual intercourse of any type by fraud, deception, misrepresentation, or impersonation. Rape by fraud is a form of sexual predation not always prosecutable under existing Washington law. In recent years, twelve states have adopted expanded rape by fraud statutory provisions. Presently, Washington’s rape statutes lack the expansive rape by fraud statutory language adopted by these twelve states. A recent sexual scam in Seattle has revealed holes in Washington’s rape statutes. This Note examines the history ...


Debt Stigma And Social Class, Michael D. Sousa Jun 2018

Debt Stigma And Social Class, Michael D. Sousa

Seattle University Law Review

For as long as creditors have been extending credit to consumer debtors, Western society has stigmatized those individuals who failed to repay their financial obligations or who found themselves swamped by unmanageable debt. Over the past three decades, scholars have studied whether the stigma surrounding indebtedness and bankruptcy has declined or increased in American society, mainly due to the sharp spike in consumer bankruptcy filings during the 1990s. These studies have resulted in a general debate over whether debt stigma still exists in society. Absent from the scholarly literature to date is an exploration of whether debtors from different social ...


Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq. Jun 2018

Sky Is The Limit: Protecting Unaccompanied Minors By Not Subjecting Them To Numerical Limitations, Deborah S. Gonzalez Esq.

St. Mary's Law Journal

Abstract forthcoming


A Status Update For Texas Voir Dire: Advocating For Pre-Trial Internet Investigation Of Prospective Jurors, Luke A. Harle Jun 2018

A Status Update For Texas Voir Dire: Advocating For Pre-Trial Internet Investigation Of Prospective Jurors, Luke A. Harle

St. Mary's Law Journal

The Internet provides trial attorneys an additional tool to investigate the backgrounds of prospective jurors during voir dire. Online searches of a person’s name and social media accounts can reveal information that could be used as grounds for a challenge for cause or to facilitate intelligent use of peremptory strikes. Texas lawmakers have not yet provided any official guidance as to whether attorneys can investigate prospective jurors online or how they might do so, should it be allowed. Texas’s current voir dire structure, judicial opinions, and ethics opinions, together, support the notion that Texas trial attorneys should be ...


Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen Jun 2018

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming


When At Loggerheads With Customary International Law: The Right To Run For Public Office And The Right To Vote, Thompson Chengeta Jun 2018

When At Loggerheads With Customary International Law: The Right To Run For Public Office And The Right To Vote, Thompson Chengeta

Brooklyn Journal of International Law

Many populist demagogues in America and Europe have spoken; and continue to speak; against human rights in their campaigns for political office. This article discusses the factors that have contributed to the current wave of populism; and the nature of the challenges that are presented by populism to democracy; human rights; and constitutionalism from an international human rights law perspective. It also focuses on President Donald Trump; who was voted President of the United States; even after he clearly and publicly indicated his support for torture and his intentions to approve it in the United States. To that end; the ...


The Race Is On! Regulating Self-Driving Vehicles Before They Hit The Streets, Jack Liechtung Jun 2018

The Race Is On! Regulating Self-Driving Vehicles Before They Hit The Streets, Jack Liechtung

Brooklyn Journal of Corporate, Financial & Commercial Law

As the world braces itself for the unveiling of autonomous vehicles, the idea of regulation and oversight has gone largely undetected. Though some states have already begun enacting legislation ahead of the technology’s wide release, the regulatory landscape across the country is in disarray. It is imperative that both manufacturers and consumers be given some sort of uniform understanding as to how the automation is overseen throughout the manufacturing process and how liability will be levied in the case of inevitable mistakes on our nation’s roadways. This Note proposes that the National Highway Traffic Safety Administration be responsible ...


Remnants Of Net Neutrality: Policing Unlawful Content Through Broadband Providers, Aaron Lerman Jun 2018

Remnants Of Net Neutrality: Policing Unlawful Content Through Broadband Providers, Aaron Lerman

Brooklyn Journal of Corporate, Financial & Commercial Law

The 2015 Open Internet Order, released by The Federal Communication Commission (FCC), introduced sweeping, new rules that promised to preserve an equal and open Internet to consumers. These rules, otherwise known as “Net Neutrality,” prohibited broadband and internet service providers from impairing, blocking, or throttling access to “lawful content” online. But with a new administration and agenda, the FCC’s 2017 Restoring Internet Freedom Order repealed Net Neutrality. Since then, various states have pushed back against the repeal, with some adopting their own versions of the 2015 Open Internet Order’s Net Neutrality, keeping most of the rule language intact ...


Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham Jun 2018

Whistleblowers—A Case Study In The Regulatory Cycle For Financial Services, Ronald H. Filler, Jerry W. Markham

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission and the Commodity Futures Trading Commission were directed by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank) to create whistleblower protection programs that reward informants with massive bounty payments. At the time of its passage, the Dodd-Frank Act was a highly controversial statute that was passed on partisan lines. Its whistleblowing authority was one of its “most contentious provisions.” As the result of the 2016 elections, the Dodd-Frank Act has come under renewed attack in Congress and by the new Trump administration. The stage is being set for possible repeal of ...


Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair Jun 2018

Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair

St. Mary's Law Journal

Abstract forthcoming


The Chilling Effect: The Politics Of Charging Rape Complainants With False Reporting, Lisa Avalos Jun 2018

The Chilling Effect: The Politics Of Charging Rape Complainants With False Reporting, Lisa Avalos

Brooklyn Law Review

Although legal scholars have addressed the persistent failure to effectively investigate and prosecute rape despite decades of attempts at reform, the issue of prosecutors going so far as to bring false reporting charges against disbelieved sexual assault victims has received scant scholarly attention. This article calls attention to this particularly disturbing externality of the mishandling of rape cases. First contextualizing false reporting prosecutions of rape victims, the article demonstrates that such prosecutions are a direct outgrowth of poor quality, under-resourced police rape investigations. These prosecutions move forward as a result of several systemic problems: procedural irregularities and informal policies that ...


Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley Jun 2018

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather ...


A (Re)Adoption Story: What Is Driving Adoptive Parents To Rehome Their Children And What Can Texas Do About It, Emma Martin Jun 2018

A (Re)Adoption Story: What Is Driving Adoptive Parents To Rehome Their Children And What Can Texas Do About It, Emma Martin

Texas A&M Law Review

Ava was adopted from Africa when she was four years old. She became the baby sister to two older brothers and the daughter to two loving, experienced parents. A year or two after Ava moved to America, she and her “forever family” attended a Colorado summer camp. All was seemingly well until the camp staff and the other families at camp started to notice something strange about the way Ava’s parents treated her compared to her brothers. After an activity, the parents greeted the brothers with an excited “did you have fun?” or “what did you learn?,” while the ...


The Future Of Law And Mobility, Daniel A. Crane Jun 2018

The Future Of Law And Mobility, Daniel A. Crane

Articles

With the launch of the new Journal of Law and Mobility, the University of Michigan is recognizing the transformative impact of new transportation and mobility technologies, from cars, to trucks, to pedestrians, to drones. The coming transition towards intelligent, automated, and connected mobility systems will transform not only the way people and goods move about, but also the way human safety, privacy, and security are protected, cities are organized, machines and people are connected, and the public and private spheres are defined.


Vulnerability, Access To Justice, And The Fragmented State, Elizabeth L. Macdowell Jun 2018

Vulnerability, Access To Justice, And The Fragmented State, Elizabeth L. Macdowell

Michigan Journal of Race and Law

This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities ...


Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks Jun 2018

Fairness In The Exceptions: Trusting Juries On Matters Of Race, Virginia Weeks

Michigan Journal of Race and Law

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting ...


Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins Jun 2018

Batson For Judges, Police Officers & Teachers: Lessons In Democracy From The Jury Box, Stacy L. Hawkins

Michigan Journal of Race and Law

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine ...


The Case Against Police Militarization, Eliav Lieblich, Adam Shinar Jun 2018

The Case Against Police Militarization, Eliav Lieblich, Adam Shinar

Michigan Journal of Race and Law

We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization.

This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization is ...


The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall May 2018

The Architecture Of Law: Building Law In The Classical Tradition, Brian M. Mccall

Brian M McCall

The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Artistotle, Gratian, Augustine, and Aquinas; the significant texts of each receive detailed exposition in these pages.
Along with McCall’s development of the architectural image, he raises a question that becomes a ...


Two & A Half Parents: Three-Parent Ivf And Medical Malpractice In The United States, Jay M. Fulk May 2018

Two & A Half Parents: Three-Parent Ivf And Medical Malpractice In The United States, Jay M. Fulk

Concordia Law Review

Fertility medicine is seeing a rapid advancement with the emergence of a new procedure called three-parent in vitro fertilization (IVF). This novel procedure provides an opportunity for women who have defective mitochondria to bear their own healthy genetic children. As women encounter fertility issues, they will often turn to regular IVF by receiving an egg from a donor—ultimately resulting in a child with no genetic relation to the mother. Women with defective mitochondria will likely pass down a mitochondrial disease to their children, therefore, bearing a child without the assistance from a donor does not present a viable option ...


Better Briefs, Lydia Fearing May 2018

Better Briefs, Lydia Fearing

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming


Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri May 2018

Uncharted Waters? Legal Ethics And The Benefit Corporation, Joseph Pileri

St. Mary's Journal on Legal Malpractice & Ethics

Corporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests ...


Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk May 2018

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate ...


The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg May 2018

The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg

St. Mary's Journal on Legal Malpractice & Ethics

In 1970, the United States Supreme Court issued Chandler v. Judicial Council of the Tenth Circuit in which five Justices determined that the federal courts of appeals possessed an administrative authority to manage the district court judges within an appellate court’s respective circuit. The decision enabled the Tenth Circuit to decide the fitness of a judge to preside over cases without a formal motion from a litigant. Although Congress had enabled the courts of appeals to oversee basic judicial functions (such as temporarily assigning district court judges to overworked districts), Congress did not intend to grant the power to ...