Category: Notes

This Note discusses existing legal procedures by which the current system of time could be modified to adapt to contemporary social changes and reduce time switching. Part I describes how the current system of timekeeping evolved and explains why it results in frequent time switching today. Part II considers the effectiveness of ongoing efforts by localities and states to avoid time switching by moving to a more favorable time zone. Part III evaluates attempts by state legislatures to minimize time switching by eliminating Daylight Saving Time (DST). Part IV briefly discusses the current international time zone scheme and contemporary contexts in which universal time is used on a global scale, suggesting that it offers a better model for a time-zone system in the United States. This Note ultimately argues in Part V that the United States should establish one permanent national time zone.

States often impose guardianship on people whose disabilities interfere with their decision-making ability, thereby entrusting another person with decision-making on their behalf. People with disabilities, activists, and scholars have critiqued the guardianship system for not doing enough to investigate the actual limitations of those subjected to guardianship and for denying too many of their rights. Guardianship exposes the tension between protecting an individual’s best interests (from the view of the State) and recognizing the right to self-determination and decision-making.

Supported decision-making offers a different approach to balancing the rights of the individual with the State’s obligation to protect people with disabilities. Put simply, the person with a disability retains decision-making authority over their own life and receives any necessary decision-making assistance from others per a voluntary agreement. While advocates initially promoted the model primarily for use by people with intellectual or psychosocial disabilities, there has been a trend to extend its use to other groups, such as older persons and people with dementia.

In light of the growing interest in supported decision-making, this Note examines existing supported decision-making statutes to propose model language that best serves people with disabilities. Part I of this Note provides a brief introduction to medical and legal determinations of capacity or competency. These concepts are necessary to understand the circumstances in which guardianship and supported decision-making agreements apply. Part II of this Note then explores the use and history of substituted decision-making, specifically guardianship, and the subsequent development of supported decision-making as an alternative. Part III delves into an analysis of existing statutes on supported decision-making, considering how each answers several key questions: What is required of the principal to enter a supported decision-making agreement? How does supported decision-making relate to guardianship? What is required of the supporter? And finally, what is the role of the State? Part IV takes up these questions again, but this time proposes model statutory language to suggest how legislatures should answer them to better serve people with disabilities.

The penalty phase in a capital case represents the most challenging, yet important part of the trial. Once a trial progresses to this stage, the jury has already rendered a guilty verdict, and the defense attorney faces the uphill battle of humanizing the defendant in order to distance him or her from the heinous act. Such a task proves especially difficult in cases involving a psychopathic defendant. This individual‘s emotionally detached, manipulative, and callous nature severely inhibits the attorney‘s ability to connect with the defendant. Even more troubling, the combination of these characteristics exudes an air of remorselessness to the jury. In this situation, the attorney faces a difficult situation in which he or she is constitutionally required to provide a humanizing composite picture of the defendant for the mitigation phase, but such a task seems nearly impossible when the client appears to be devoid of all characteristics we typically associate with human nature. Without some creative form of mitigation evidence, the jury will undoubtedly find this defendant more monster than human and impose the death penalty.

In the past, such a situation may have ended with the defendant receiving the death penalty, or, in some rare instances, the case getting reversed for a Sixth Amendment violation for ineffective assistance of counsel. New advances in neuroscience technology over the last twenty years, however, have allowed criminal defense attorneys to identify a wide array of brain abnormalities that may assist in mitigation. While brain scanning technology has received the majority of research and application in criminal cases in recent years, relatively new to the courts is genetic research that has revealed a genetic predisposition for one‘s propensity for violence. Specifically, independently conducted research studies in the field of behavioral genetics suggest that the combination of genetic predisposition and an abusive environment may significantly contribute to violent antisocial behavior, including psychopathy. While past scholarship and recent public debate have focused upon the long-term normative implications of neuroscience and culpability, this Note explores genotyping‘s practical application in current capital cases involving psychopathic defendants.This Note avoids any normative discussions concerning morality and culpability in light of the new advances in neuroscience. Instead, it focuses more on the pragmatic considerations that capital defense attorneys routinely encounter while attempting to fulfill their constitutional obligations. Even though this Note does not propose genotyping defenses as the ultimate panacea for mitigation difficulties,the Note does advocate that genotyping evidence, combined with psychological evaluation, family history evidence, and expert psychological testimony, could provide a potentially powerful mitigation tool to capital defense attorneys when representing a psychopathic defendant.

This Note proceeds in four parts. Part I defines psychopathy and discusses potential causes and diagnostic devices used to identify this disorder. Part II explores the basic structure of capital cases, common mitigation techniques, and potential deficiencies in mitigation evidence when applied to psychopathic defendants. Part III discusses how neuroimaging and genotyping may account for some of the deficiencies in mitigation. Part IV conducts an in-depth case analysis, examines the potential costs and benefits of using genotyping defenses, and provides recommendations for use in future trials.

Click to access 90.6.5.pdf

Most second-year law students who have completed an introductory course on civil procedure can explain the doctrines of issue and claim preclusion—collectively known as res judicata—with some proficiency. By successfully invoking either doctrine, one can avoid having to defend against a prolonged and expensive lawsuit. A defendant who fails to meet the elements of either probably will not be able to preclude a plaintiff‘s action. This is not the case in Kansas. The one-action rule in Kansas prohibits a plaintiff from securing a comparative fault determination and then suing other defendants for injuries arising from negligence related to the same transaction. Developed through a string of judicial interpretations of the Kansas comparative negligence statute, the rule has since been embraced by the legislature and has enjoyed consistent support in Kansas courts.

If the Kansas one-action rule furthers all of its justificatory principles— judicial economy, fairness, and consistency, to name a few—why have the courts and, ostensibly, legislatures of other states refused to follow Kansas‘s lead and adopt an identical rule? This Note will begin by providing a brief history of the one-action rule, from its (mostly) judicially created origins to its explicit approval by the Kansas legislature. It will also examine the current status of the doctrine in Kansas, including recent modifications and clarifications. The following part will discuss the rule‘s failure to expand into other jurisdictions that have expressly considered its rationale and implications. The concluding part will analyze the justifications for both supporting and opposing the expansion of the one- action rule and provide possible reasons that the rule has not caught on the way some commentators think it should have. Ultimately, this Note proposes that, at least from a theoretical standpoint, the one-action rule provides an element of fairness that might otherwise be missing from comparative negligence law. But the practical uncertainties underlying the rule‘s application might justify most jurisdictions‘ hesitance to adopt something substantially similar. The rule‘s practical implications should be investigated so that sufficient information exists for jurisdictions to make informed decisions regarding its adoption.

Click to access 90.6.4.pdf

This Note argues that some of the recent social media decisions by Administrative Law Judges (ALJs) and the National Labor Relations Board (NLRB) may extend section 7‘s protection of concerted activity beyond what precedent allows.32 Furthermore, it proposes that even where the activity is concerted and for mutual aid or protection, the NLRB should not apply section 7 protection to employee social network posts that tarnish the employer‘s public image by disseminating details about workplace problems on the Internet. The Supreme Court has suggested that ―even when concerted activity comes within the scope of the ̳mutual aid or protection‘ clause, the forms such activity permissibly may take may well depend on the object of the activity. In the social networking cases, the Board and courts would best effectuate the purpose of the National Labor Relations Act (NLRA), while allowing employers to control their public image, by protecting only employees‘ online statements that are communicated privately or that do not disparage the employer.

Part I provides a general history of the NLRA and an overview of recent social networking cases that have been decided by ALJs. Part II examines the definition of concerted activity and the challenges for parties who contend that their individual social network activity was concerted. Part III discusses the ―mutual aid or protection‖ requirement. Part IV suggests that in deciding whether to grant employees section 7 protection, the NLRB should adopt a balancing test that would consider the form of the protest against the object of the activity before extending protection.

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In the heat of the 2011 Chicago mayoral campaign, an appellate court in Illinois ordered the name of front-runner Rahm Emanuel, a former congressman and White House Chief of Staff, stricken from the ballot based on its determination that Emanuel had not been a Chicago resident for the one year preceding election day. The election was thrown into turmoil less than a month before voters were to go to the polls to elect the successor to the long-serving Mayor Richard M. Daley. The decision ignited a firestorm of condemnation that was fueled in part by a vigorous and visceral dissenting opinion as well as the appellate court‘s decision to not certify an appeal. Two days later, the Illinois Supreme Court ended the uproar by reversing the appellate court in Maksym v. Board of Election Commissioners, turning the campaign‘s focus back to the candidates but issuing a legally questionable opinion in the process.

The case of Rahm Emanuel is one of the most high profile examples of candidates who face removal from the ballot based on durational residence requirements, laws specifying that candidates must have been residents of the electoral unit for a length of time before their election. In an era of increasing mobility, durational residence requirements can prove particularly onerous for potential candidates wishing to return ―home‖ in order to run for political office. Moreover, as the story of Maksym amply illustrates, durational residence challenges force courts to resolve a tension between the rule of law and a preference for voter choice in a politically charged atmosphere within a much shorter timeframe than appellate courts traditionally are given to consider difficult questions. By requiring courts to make such difficult choices so quickly, durational residence requirements risk the legitimacy of courts on an issue that arguably should be resolved by the electorate itself.

Part I of this note discusses durational residence requirements, focusing on the elements of durational residence and the policies that animate them. Part II discusses Maksym v. Board of Election Commissioners, the Rahm Emanuel residence case, analyzing and critiquing the opinions of both the appellate court and state supreme court. Part III examines lessons that can be drawn from Maksym, and in particular the difficulties this class of cases poses for courts, the impulse of courts to resolve legal questions in the interest of promoting voter choice, and ways in which a court confronted with a similar issue in the future could deal with it.

Click to access 90.5.4.pdf

Although admiralty is among the law’s oldest practices, it continues to play a vital role in modern litigation—whether that be through the transportation of goods on rivers or people on cruise ships. Prior to 1966, a federal court exercising its admiralty jurisdiction relied on a different set of rules than when it acted in law or equity.To accommodate this distinction, cases were placed on separate dockets based on the court’s source of jurisdiction. This system resulted in procedural differences that set admiralty claims apart from others. Admiralty cases were historically tried before the bench, while common law claims, as protected by the Seventh Amendment, were tried before a jury. In an effort to modernize admiralty law and prevent the dismissal of valid claims for procedural technicalities, the admiralty and civil dockets were unified in 1966. “The resulting joinder provisions of the Federal Rules of Civil Procedure apply to all cases and make it possible to join both admiralty and nonadmiralty claims in a single action.” These cases are treated as hybrid admiralty- civil cases. While the 1966 unification corrected many of the dual-docket difficulties, it created two new problems of its own. First, should a judge or jury determine the facts in a hybrid admiralty-civil case when each claim has an independent basis for federal jurisdiction? Second, should the court undertake a separate analysis to determine the fact-finder in a hybrid case when the civil claim does not have an independent basis for federal jurisdiction? If so, what should this analysis look like and which trier of fact should determine the case outcome? The Supreme Court has failed to answer these questions, leaving the circuits split.

This Note analyzes and evaluates the conflict among courts for both of these questions. Part I introduces the current conflict among circuits. Part II presents a general history of admiralty courts and law with an emphasis on its international development as a separate body of courts and its procedure before and after the 1966 unification. Part III explores the three approaches adopted by courts in determining the trier of fact when both the admiralty and civil claims have independent bases for federal jurisdiction. Part IV examines the approaches adopted by courts in determining the trier of fact when the civil claim does not have an independent basis for federal jurisdiction. Part IV, utilizing the approach adopted by many courts, separates those claims involving limitation of liability proceedings from those without such an action. Part V analyzes the conflict among the courts and proposes an answer to each of the two questions above. When each claim comprising a hybrid admiralty-civil case has an independent basis for federal jurisdiction, the court should attempt to sever the claims so as to preserve the common law jury right and the admiralty bench trial. If the facts of the claims are so intertwined as to make severance impossible, the civil litigant’s jury right must trump the traditional admiralty bench trial. When the civil claim in a hybrid case does not have an independent basis for federal jurisdiction, the traditional admiralty bench trial should be preserved in all but one situation—when the civil litigant is forced into federal court through the initiation of a limitation of liability proceeding.

Click to access 90.4.5.pdf

For some, it comes after their team squanders away a fourth quarter lead in the playoffs, engages in a hasty trade, or makes an ill-advised substitution. For others, an indefensible draft choice, announcement of team relocation, or decision not to re-sign a star player triggers the thought. Whether at a sports bar or on their own living room couch, at one time or another, every sports fan has transported him or herself to the owner’s box and imagined, “If I ran that team, things would be different.” In the face of numerous professional sports team bankruptcies and league lockouts in the last fifteen years, as well as the current economic client, all professional franchises should be reevaluating their ownership structures and investigating new sources of revenue. Although the notion of a publicly owned and traded sports team is not a new business revelation, current economic conditions have reactivated largely dormant discussions of the opportunity. While the decisions posed throughout this analysis are ultimately left to current sports team ownership, this Note is meant to serve as a thought experiment to provoke questions and to spark discussion regarding the viability of a public model of sports team ownership.

Click to access 90.4.4.pdf

The advent of DNA technology in the late 1980s led to a wave of exonerations in the United States, shedding light on major problems with the U.S. criminal justice system. Many of these wrongful convictions were traced back to criminal informants, colloquially referred to as “snitches,” who provided incriminating testimony in exchange for a sentence reduction, leniency, inmate privileges, or some other perk. The correlation between wrongful convictions and informant testimony is a cause for concern, especially in Texas, where more people have been executed and exonerated than anywhere else in the country. This Note analyzes the use of criminal informants with a particular focus on jailhouse informants—inmates that come forward with the “confessions” of fellow inmates. First, this Note discusses the broad use of criminal informants throughout history and the problems that have arisen therefrom. Second, it examines Nolley v. State, the Texas Court of Criminal Appeals case that inspired legislative change in Texas. Third, this Note assesses Texas House Bill 34, which is Texas’s latest legislative effort to regulate the use of jailhouse informants. Finally, this Note proposes a solution to address the problem of unreliable jailhouse informant testimony that requires judges to serve a “gatekeeping role” through which they could filter out unreliable testimony before trial. As part of this solution, this Note recommends giving judges and defense attorneys access to a statewide database containing information on every jailhouse informant ever used so that they do not have to rely on the prosecution to produce that information. Though this solution will add to the workload of judges, it is necessary to prevent prosecutorial misconduct and ensure the integrity of the U.S. criminal justice system.

The Armed Career Criminal Act (ACCA) imposes mandatory minimum sentences on individuals convicted of being a felon in possession of a firearm who have at least three prior convictions for “violent felon[ies].” “Violent felon[ies]” include those crimes contemplated by the ACCA’s “residual clause.” The Supreme Court ruled that the residual clause was unconstitutional in Johnson v. United States in 2015. As the decision in Johnson was retroactive, individuals whose sentences were enhanced on the basis of the residual clause may seek relief under Johnson. In affording such relief, however, the circuits disagree as to what standard of proof should apply to the question of whether a sentence enhancement was in fact based on the residual clause. Some circuits have held that a movant must show only that his sentence enhancement “may have” been based on the residual clause in order to have the sentence vacated. Other circuits, however, have held that a movant must meet the higher preponderance-of-the-evidence standard by showing that the judge more than likely relied on the residual clause in handing down the sentence. In 2019, the Fifth Circuit in United States v. Clay chose sides in the circuit split by adopting the harsher preponderance-of-the-evidence standard. This Note uses the Fifth Circuit’s decision in Clay as a springboard for analyzing the consequences of the preponderance-of-the evidence standard.