In November 2012, California voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act, known as ―Measure B. The law requires producers of erotic adult films to overcome financial hurdles and complete educational training to secure filming permits and also mandates the use of condoms during the production of adult films. If a movie‘s producers shoot a scene involving anal or vaginal intercourse without a condom, they will lose their Measure B permits, face fines, and be forbidden from engaging in any future filming for an unspecified period. Although the purpose of the law is laudable—to minimize the spread of sexually transmitted infections resulting from the production of adult films in the County of Los Angeles—the regulation functions as an outright ban on the filming of unprotected, or bareback, sex scenes and is an impermissible infringement on protected speech.
Since Measure B‘s strict requirements do not leave open alternative channels of communication, the law will fail constitutional scrutiny under a content-neutral standard. This conclusion, however, may be difficult to reach if the value of barebacking as speech and the alternative means of expression are only evaluated through a traditional heteronormative lens. Queer theory offers a distinctive platform from which to challenge the law, and a careful analysis of bareback sex within the gay community brings the importance of this speech into sharper relief.
Barebacking constitutes a unique identity within the gay community, namely hypermasculinity. Forcing a gay porn star to cover his penis during filming is tantamount to sheathing his sword, blunting his masculinity, power, and speech.
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.
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.
In June 2011 the Supreme Court decided two momentous personal jurisdiction cases: one, Goodyear Dunlop Tires Operations v. Brown, limited general jurisdiction to its rightful narrow role as a way to establish state court jurisdiction, while the other, J. McIntyre Machinery, Ltd. v. Nicastro, barely staved off a second attempt to narrow “stream of commerce” as a vehicle for jurisdiction. Although both cases made those valuable contributions to doctrine, they also denied a United States court to U.S. citizens who sued foreign defendants for torts, effectively leaving the plaintiffs without remedies for the allegedly negligent acts of the defendants. Goodyear Dunlop Tires involved an accident outside the United States, while Nicastro arose from an injury in New Jersey. With globalization bringing increased international business and travel, there is sure to be a significant increase in injuries suffered by U.S. citizens as a result of the negligent activities of foreign businesses and a resultant increase in the type of litigation involved in the two new cases. This Article critiques both cases and then examines whether non-citizens are protected by constitutional personal jurisdiction rights. Outside the context of personal jurisdiction, the Supreme Court has held since the nineteenth century that the scope of constitutional protections varies depending on two factors: whether a party is a citizen of the United States or a foreign national and whether a non-citizen resides in the United States or abroad. Without any real consideration, the Supreme Court in Goodyear Dunlop Tires and Nicastro applied the same personal jurisdiction law to non-citizen, non-resident defendants as it applies to defendants who are U.S. citizens. This Article argues that non-resident, non-citizen defendants are not protected by the constitutional personal jurisdiction law developed in domestic litigation. Freed from constitutional constraints, the Supreme Court has the ability to fashion a new law of personal jurisdiction for foreign defendants better suited for the tort claims of U.S. citizens, taking into account the interests of the U.S. plaintiffs. The Article provides a foundation for developing a new law of personal jurisdiction for foreign defendants.
Gay rights litigation and advocacy traditionally have focused on the unequal treatment of gay and lesbian individuals and couples; less attention has been dedicated explicitly to the legal rights of the children of gay and lesbian parents. This Article asserts that a child of same-sex parents denied a government benefit has a cognizable equal protection challenge—a legal claim that is separate and distinct from that of the child’s gay or lesbian parents. It is well-settled equal protection law that the government may not treat nonmarital children differently than marital children because of moral disdain for their parents’ relationship, and laws classifying children based on their parents’ marital status are subject to intermediate scrutiny. Today, a majority of states exclude children of same-sex parents from the economic benefits that could be derived from their non-biological same-sex parent, including health insurance, workers’ compensation benefits, child support, and social security benefits. When medical events, divorces, lay-offs or death occur in the lives of children of same-sex parents in these “no-protection” states, they are denied important economic safety nets—safety nets that children of married and unmarried opposite-sex parents enjoy. As a subset of nonmarital children, children of same-sex parents exercise no control over their parents’ conduct, but suffer concrete economic injuries because of the state’s imputation of immorality to them. This government-sponsored discrimination cannot be fairly justified on the basis of preserving traditional family values or on the basis of ensuring administrative efficiency. “No-protection” states must dismantle the insurmountable barrier that blocks children of same-sex parents from establishing a legal relationship with their non-biological same-sex parent, and place them on equal footing with their opposite-sex parented peers.
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