Digital Commons Network^™

Developmental Neurobiology And Miller V. Alabama: To What Extent Do Juvenile Brains Change?, Christos D. Strubakos J.D., Ph.D.

Cleveland State Law Review

This article delves into the profound complexities surrounding juvenile violent offenders. The landmark Supreme Court decision in Miller v. Alabama ruled that mandatory life without parole for juveniles is unconstitutional, citing developmental neuroscience that suggests adolescent brains are more amenable to rehabilitation because of their ongoing development. However, this article posits the ruling overlooks critical nuances in brain development. Emerging research indicates some juvenile offenders may exhibit persistent neurological profiles, like structural and functional brain changes, which do not resolve with age, challenging the assumption all young offenders can be rehabilitated as they mature. Through an in-depth analysis of contemporary …

An Empirical Assessment Of New Jersey's Mistaken Imprisonment Act, Jeffrey S. Gutman

Seton Hall Journal of Legislation and Public Policy

No abstract provided.

From Deliberate Indifference To Civil Negligence: Protecting Male Prisoners From Sexual Violence In United States Prisons, Olivia Martini

Immigration and Human Rights Law Review

Sexual violence in United States prisons is a pervasive issue that disproportionately impacts male inmates, revealing systemic failures in the current legal framework designed to protect incarcerated individuals. The deliberate indifference standard, established by the United States Supreme Court, imposes an excessively high burden of proof on survivors, requiring evidence of prison officials’ subjective awareness of specific, substantial risks.

This article critiques the shortcomings of the deliberate indifference standard and proposes a civil negligence framework as a promising alternative. Grounded in an objective duty of care, a civil negligence approach emphasizes proactive measures that institutions must take to avoid liability. …

Evaporating Natural Parent Childcare Liberties Under New Parentage Laws, Jeffrey A. Parness

Arkansas Law Review

This Article explores the evaporating Due Process interests of natural childcare parents who are not unfit and who do not knowingly consent to diminished childcare liberties when the state recognizes new nonadoptive and nonbiological parents. Childcare liberty losses need not involve neglect or comparable bad acts rendering a parent unfit. They need not involve consent, actual or implied, by an adversely affected parent. On the new forms of nonadoptive and nonbiological childcare parents, the most recent UPAs and their state counterparts are illustrative. They recognize parentage in an individual who resides with and holds out a child as the individual’s …

Tenant Rights Deserve Consumer Protections: The Case For Overturning State V. Schwab, Robert S. Colton

Washington Law Review

Tenancy is a precarious housing arrangement—tenants do not own their homes yet depend on housing stability as a foundation for engaging in almost all aspects of life. For more than fifty years, Washington law has decreed it a landlord’s responsibility to maintain safe and secure housing for their tenants. As the Washington State Legislature has declared, “[d]ecent housing for the people of Washington state is a most important public concern.” This strong rhetoric remains at odds with State v. Schwab, the sweeping decision issued by the 1985 Washington State Supreme Court removing tenants from the reach of the Consumer …

Can Personal Identification Information Be Collected On Online Purchases Under California’S Song-Beverly Credit Card Act?, John B. Lafave Iii

North Carolina Banking Institute

No abstract provided.

Judging Demeanor, Kiel Brennan-Marquez, Julia Simon-Kerr

Minnesota Law Review Vols. 106:2 onward (2021-present)

This Article challenges the conventional wisdom that defendant demeanor—affect, body language, and physical appearance—helps juries assess guilt. On the contrary, we show that demeanor evidence poses an inherent risk of propensity-based reasoning. It invites jurors to convict defendants based on whether they “look like criminals,” rather than on the actual facts of the case. In doing so, demeanor evidence facilitates cultural and racial subordination. It enables members of dominant groups—consciously or not—to penalize members of less-dominant groups for failing to appear innocent or credible. We argue that existing law has things backwards. It treats defendant demeanor as presumptively useful and …

Legal Academia's White Gaze, Renee Nicole Allen

Minnesota Law Review Vols. 106:2 onward (2021-present)

For Black law faculty, Blackness, the Black experience, and Black legal and social identity are not trends. Yet, there are inflection points where legal scholarship about race, particularly Blackness, is in vogue. The most recent rise in such legal scholarship came in the aftermath of George Floyd’s murder and the worldwide Black Lives Matter protests in 2020. When antiracist sentiment is high, the regard for scholarship central to the personhood of Black legal scholars is high. Even then, there is an expectation that Black authors write in ways that conform to the White norms of legal scholarship. Though central to …

Brain-Dead Surrogacy And Testamentary Disposition: Legal Rights Over One’S Body For Reproductive Purposes, Cassandra L. Nelson

Vanderbilt Law Review

Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy—that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body’s homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States’ historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities …

Shadow Banking And Securities Law, Gabriel V. Rauterberg, Jeffery Yufeng Zhang

Articles

Shadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but fall outside the scope of banking regulation—aptly termed “shadow banks”—were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem: extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.

In this Article, we explore the uneasy case for greater regulation of shadow banking through a different route—securities law. Our first contribution …

Exit Planning And Emigration Aspirations Among Trans And Nonbinary U.S. Citizens, Jayesh Rathod

Presentations

Mitigation That Worked: Empirical Evidence Of Why Jurors Rejected The Death Penalty In Some Highly Aggravated Capital Cases, Russell Stetler, Maria Mclaughlin, Susan Garvey

Hofstra Law Review

Over several years, we have documented over 625 highly aggravated cases where jurors declined to impose the death penalty at sentencing. These cases support our belief that the effective investigation and presentation of mitigating evidence can forestall a death sentence no matter how death-worthy the crime facts may appear at first glance. However, our previous publications shed no light on the specific mitigation evidence that inspired jurors to reject the death penalty in individual cases. This Article summarizes readily available documentary sources from over five hundred cases (more than eighty percent of all the cases in our database), utilizing special …

The True Cost Of Student Debt: How The "Undue Burden" Standard In Student Loan Dischargeability Impacts Mental Health, Diversity, And The Legal Profession, Matthew Lee Demestrio

Hofstra Law Review

No abstract provided.

Why Jack Daniel's Can't Stop #Westelmcaleb, And What Now?, Irina D. Manta, Kavita D. Balchand

William & Mary Bill of Rights Journal

This Article proceeds in four Parts. Part I provides a basic overview of trademark law and brand protection. It explains the key components of the Lanham Act, the central federal legislation in this area—including the two federal causes of action, trademark infringement and trademark dilution—and explores the law’s role in brand protection. Next, Part II discusses the area of social media and brand promotion. It begins with examining the rise of social media and the emergence of hashtags, in addition to trademarks used within hashtags and the registration of hashtags by the United States Patent Trademark Office (USPTO) as well …

Dobbs And The New Doctrine Of Stare Decisis, Russell A. Miller

William & Mary Bill of Rights Journal

Alongside the historic and troubling annulment of the half-century-old Substantive Due Process right to abortion, Dobbs produced another significant outcome. To get its substantive constitutional law result, the Court’s majority also had to reconceive—and significantly weaken—the doctrine of stare decisis. This was necessary because, following Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to abortion largely depended on respect for precedent as the basis for its survival. To overturn Roe, the Dobbs majority had to blast through the established practice of precedent and articulate a new doctrine of stare decisis. It seems that precedent …

Strategy For Strategy’S Sake, Edith Beerdsen

North Carolina Law Review

No abstract provided.

The Hardest Thing I'Ve Ever Done: Reentry Realities Of Criminalized Survivors, Emunah Evans, Marsha Weissman, Deborah M. Weissman

North Carolina Law Review

No abstract provided.

Sentencing Vulnerability: An Empirical Study Into The Role Of Personal Characteristics And The Foreseeable Experience Of Confinement At The Sentencing Of Older Adults, Adelina Iftene, Allison Hearns

Articles, Book Chapters, & Popular Press

This article presents and analyzes findings from a qualitative and quantitative review of reported Nova Scotia sentencing decisions (2013–2020) of aging individuals. The goal is twofold. First, by investigating the judicial discourse around personal characteristics at sentencing aging individuals, we specifically seek to understand where aging, and characteristics that interplay with aging, fit into current sentencing practices and the potential benefits and challenges of considering these factors. Secondly, and more generally, through the case study of older offenders, this article seeks to contribute to the largely theoretical scholarship that has engaged with the need for a methodical inclusion of a …

Trauma-Informed Judicial Practice Meets Therapeutic Jurisprudence: Compassionate Written Judgments In Child Protection Cases, Shelley Kierstead

Articles & Book Chapters

Trauma arises from profoundly distressing life events, and manifests in a range of often overwhelming physical and psychological symptoms. The legal community is increasingly recognizing that clients living with trauma need trauma-informed services—that is, services that “recognize, understand and minimize” the long-term impact of trauma. A trauma-informed approach acknowledges that “effective interventions with people require both the avoidance of retraumatization and the presence of respectful and supportive interventions that help people rebuild their lives.”

Shadow Banking And Securities Law, Gabriel Rauterberg, Jeffery Y. Zhang

Faculty Scholarship

Shadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but fall outside the scope of banking regulation — aptly termed “shadow banks” — were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem: extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.

In this Article, we explore the uneasy case for greater regulation of shadow banking through a different route …

Individual Liberty, Safety And Police Liabilities Under The Mental Health (Care And Treatment) Act, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

How should a society strike a balance between the objective of ensuring safety from dangers that may be posed by individuals believed to have a mental disorder and the deprivation of their liberty? How should police officers discharge their duties in apprehending such individuals with a view to conveying them to a medical practitioner at a psychiatric institution? These legal issues took centrestage in the Singapore High Court decision of Mah Kiat Seng v Attorney-General in which the apprehended individual brought claims in false imprisonment against a police officer. The decision examined the underlying purposes of the Singapore Mental Health …

Love And Hate In University Technology Commercialization Proposed Revision To The Bayh-Dole Act, Clovia Hamilton, David Schuman

Hofstra Labor & Employment Law Journal

To a large extent, the university technology transfer (hereinafter the "TTO") success depends on harmonious relationships between technology transfer staff and contributing faculty. While this state is ideal, regretfully, it is not typical. We describe sixty-two legal battles between academic inventors and their universities. We also identify the stressors caused by perceived threats to the TTO staff and faculty researchers, which result in felt job insecurity. We then developed a concept model which depicts these perceived threats and how they contribute to positive functional technology transfer performance or negative dysfunctional performance. We propose that any lack of communication, social exchanges, …

Climbing The Family Tree To Solve Crime: The Statutory Regulation Of Investigative Genetic Genealogy In Wisconsin, Margaret B. Mullican

Marquette Benefits and Social Welfare Law Review

Investigative Genetic Genealogy ("IGG") has emerged as a groundbreaking

tool that law enforcement agencies across the United States

are using to solve their most notorious criminal cases. IGG has led to

remarkable outcomes, such as identifying unknown victims, solving

decades-old violent crimes, and exonerating the innocent. While IGG

has transformed criminal investigations for the better, the tool has

also sparked concerns with the public regarding its haphazard regulation

and its constitutional implications. Despite the tool being

widely used by law enforcement, it remains relatively unregulated,

which has raised concerns about potential misuse, as well as a lack

of transparency and …

Leveraging The History And Tradition Framework In Support Of Transgender Americans’ Fundamental Right To Choose A Name, Abigail Franke

Marquette Benefits and Social Welfare Law Review

Transgender people are facing waves of new legislation limiting their right to exist. However, there is an enormous amount of preexisting state laws which limit transgender people’s right to choose a gender affirming name on their own terms. Many current state laws severely restrict the ability of transgender people with prior felony convictions to change their name. These laws limit the ability of people with felony convictions from changing their name: based on the offense, pursuant a time limit, or force transgender people to out themselves. In this note I argue that these state-level laws place an unconstitutional barrier between …

Picking Through The Remnants Of Brown V. Board To Realize The Ideal Of Quality Public Education For All Children In The Post Covid-19 Era, Tiffani Darden

William & Mary Law Review

Brown, above and beyond eliminating the “separate but equal” doctrine, presented many socio-legal principles that were abdicated or diluted during the government’s COVID-19 response. This Article will address several strands recognized throughout the opinion’s seventy-year history by the courts and legal commentators that were illuminated during this period. First, the pursuit of quality education remains elusive for people of color and students from lower socioeconomic backgrounds. Second, public education continues to be an aspirational pathway to upward social mobility and building a democracy composed of educated citizens. Third, the anti-subordination construction, as opposed to the anti-classification interpretation, of the …

The Right To A Nuisance-Free Public Education, Jamel K. Donnor

William & Mary Law Review

The aim of this Article is to discuss how Florida’s Individual Freedom Act infringes upon Black students’ constitutional right to learn about non-white supremacist ideas, their freedom to think, and a public school’s ability to offer Black-centered curricula content.

[...]

This Article explains that the Individual Freedom Act’s racially encoded wording establishes an academic environment for a racial nuisance to exist because its criteria authorize public education officials to label curricula content under the auspices of indoctrination, divisiveness, or educational value. While the term “nuisance” is typically reserved for determining reasonableness of an “interference with a right common to the …

Brown Now: The Surprising Possibility Of Progressive Reform, Louis Michael Seidman

William & Mary Law Review

For four decades, the Supreme Court has engaged in a determined, systematic, and successful effort to transform and tame Brown v. Board of Education. But there is a surprising counterweight to this standard narrative. If one takes modern doctrine seriously, the Supreme Court’s refashioning of Brown has the potential to support some progressive goals. The modern Court’s decisions provide a basis for upholding race-conscious but facially neutral measures that promote racial diversity, striking down legacy admission standards in colleges and universities, and strictly scrutinizing laws that discriminate based on sexual orientation. The last Part of this Article speculates about …

Not Demented Enough: Dementia And Competency To Stand Trial, Rashmi Goel

Nevada Law Journal

No abstract provided.

Rest In The Mourning: Navigating Assisted Suicide And Autonomy, Jada Rhome

Journal of Law and Health

Life, in all its diversity, has always been revered for its beauty, be it in the myriad opportunities it presents, the relationships we forge, or the cyclical changes that shape our journey. Yet, life’s harsh winters, those prolonged periods of suffering, often push the boundaries of endurance, prompting the question: Should we insist on perseverance when the hope of relief seems distant? This paper aims to explore this very question in the context of assisted suicide. This paper delves into the intricate ethical landscape of assisted suicide, navigating the complex interplay between autonomy, dignity, and the sanctity of life. At …

Cracking The Façade: Analyzing Ohio's "Don't Say Gay" Legislation As Disguised Discrimination Under The First And Fourteenth Amendments, Sydni L. Porter

Journal of Law and Health

The Ohio State Legislature is among the growing nationwide trend in attacking LGBTQ+ rights. Chief among these is Ohio House Bill 8, which claims to limit the types of content children encounter in schools. While the drafters cite this noble intent, the bill's actual impact further harms queer students and teachers, who already bear heavier mental health burdens due to such legislation and its societal implications. This type of legislation recently originated in Florida, where it was signed into law by Governor Ron DeSantis in 2022 and garnered national media attention. As Ohio Governor Mike DeWine signed a near-identical bill …