Issue – 20.3

Preventing Child Maltreatment Fatalities
Jennifer A.L. Sheldon-Sherman

Every ten seconds, a report of child abuse or neglect is made in the United States, and every day, four children die as a result of these acts or omissions. In the past ten years, over 15,000 children died from maltreatment. Despite these numbers, there is still much to learn about the children who die from abuse and neglect, the individuals who are responsible for their deaths, and the interventions implemented to prevent them. This Article comprehensively reviews child deaths from maltreatment. Compiling, evaluating, and assessing the work of physicians, psychologists, sociologists, lawyers, and child welfare advocates, the Article charts the United States’ progress in eradicating deaths from abuse and neglect, evaluates the impact of prevention mechanisms, analyzes potential methods to enhance current measures, and proposes concrete steps for reform.


When Fear Rules in Law’s Place: Pseudonymous Litigation as a Response to Systematic Intimidation
Benjamin P. Edwards

When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued since that time. This Article traces that trend further into the current day to provide a more accurate assessment of systemic risks. A timely understanding of the current environment is essential because courts have begun to express skepticism about whether the risk remains or whether a few dated, anecdotal accounts actually constitute a trend. As courts and practitioners seek guidance about requests for pseudonymity today, there is urgent need for information and guidance on this issue. This Article’s guidance reaches beyond the separation of church and state context to argue that courts should alter their analysis when faced with any set of cases generating similar trends.


Security in Uncertain Times: Policies for Increasing the Popularity of Life Annuities Among Retirees
Rami Hanegbi

Life annuities offer retirees an assured income stream for as long as they live. This makes it surprising that they are unpopular in most markets where their purchase is not compelled by government policy. With the numbers of retirees in the population set to increase dramatically, this low take-up rate of life annuities could exacerbate financial insecurity. Consequently, it is in society’s interest to implement non-coercive policies that increase annuitization levels. Although there is research that has focused on the possible causes of low annuitization rates, much of this research falls short of suggesting comprehensive strategies for persuading retirees to annuitize their savings.

This article discusses what mix of policies would increase the attractiveness of life annuities. It does this by determining the salient characteristics of the few markets where life annuities are popular. It then suggests how the correct policy settings could make such characteristics a feature of the mainstream annuity market. It also discusses other policies, including limited tax incentives or subsidies on annuities that might play an important role. It is argued that policy innovations such as these are preferable to making the purchase of annuities compulsory. This is because the one-size-fits-all approach will not be ideal for everyone, and it interferes with freedom of choice, an important right in a capitalist society. An alternative is to make annuity purchases a default choice. But this is effectively compulsion by stealth as it relies on inertia and, therefore, carries some of the disadvantages of mandatory annuitization. The article concludes with a discussion of how the appropriate marketing and innovation of different life annuity products could supplement annuity-maximizing policies and further improve annuitization rates.


Note

The Blame Game: Law Students Sue Their Law Schools for Deceptive Employment Reporting Practices
Ogechi Achuko

Since the Great Recession, the legal job market has markedly declined leaving many recent law school graduates without employment and frustrated. In response, a number of graduates are blaming their law schools for providing misleading employment statistics that they claim to have detrimentally relied upon in their decision to attend law school. This Note focuses on the recent wave of class action lawsuits against several American law schools for their alleged use of deceptive employment reporting practices based on legal theories such as fraud, negligent misrepresentation, and state consumer protection law violations. This Note analyzes the viability of these legal claims and the various defenses raised by the law school defendants. In conclusion, the Note discusses how these class action lawsuits along with pressure from the media and the government have increased law school transparency and accountability.


Issue – 20.2

The Twelve-Year-Old Girl’s Lawsuit That Changed America: The Continuing Impact of Now v. Little League Baseball, Inc. at 40
Douglas E. Abrams

In 1972, Little League’s national office forced 12-year-old Maria Pepe off her Hoboken (N.J.) team because “[g]irls are not eligible.” The New Jersey Division on Civil Rights sustained her gender discrimination claim in 1973, and the courts upheld the administrative decision a year later.

National reaction to Maria Pepe’s courageous insistence on gender equity helped sustain the evolution in gender roles that had accelerated since the Women’s Movement of the 1960s. Her landmark legal action also likely influenced the Supreme Court’s gradual movement toward intermediate scrutiny of gender discrimination claims; the 1975 federal regulations that assured Title IX of the Education Amendments of 1972 a prominent role in elementary, secondary and higher education; and children’s socialization concerning gender roles in our society.


From Trespasser to Homeowner: The Case Against Adverse Possession in the Post-Crash World
Kristine S. Cherek

Since the financial crisis began in September of 2008, there have been approximately 3.7 million completed foreclosures in the United States, and approximately 1.4 million additional homes are currently in some stage of the foreclosure process. In the midst of this post-housing crash world, the centuries-old doctrine of adverse possession is gaining new attention. This Article examines the doctrine of adverse possession as it may be used, and as it is currently being used, with respect to residential properties that stand vacant as a result of foreclosure actions. As adverse possession is currently construed in a majority of states, a trespasser can illegally enter a vacant home and, assuming the trespasser satisfies the elements of the doctrine, ultimately prevail in obtaining title to the home by adverse possession. The trespasser can be transformed into the homeowner through the doctrine of adverse possession. This Article argues that the doctrine must be reformed to prevent this unjust and undesirable result.


Confine is Fine: Have the Non-Dangerous Mentally Ill Lost Their Right to Liberty? An Empirical Study to Unravel the Psychiatrist’s Crystal Ball
Donald H. Stone, J.D.

This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention of dangerousness and undermine the belief that we can medicate away the needs of the mentally ill. The adverse effect civil commitments can have on individuals’ long-term recovery, future employment prospects and overall mental, physical, emotional and economic stability can be far-reaching; so minimum due process protections must be carefully guarded. The contention is that civil commitment decisions should be based on concrete evidence that the individual is an imminent danger to self or others and not on a psychiatrists’ speculation about future deterioration absent coerced treatment. Statistical data, collected from a survey of 100 psychiatrists, will be examined to determine what is most significant to psychiatrists in commitment decisions and highlight the impact state standards and types of hospital facilities have on psychiatrists’ testimony at civil commitment proceedings. Finally, this Article will outline how “need for treatment” and “grave disability” provisions in commitment standards have stripped away due process protections for the mentally ill and discuss ways mental health advocates can fight back to reverse this troubling movement in commitment laws.


Note

Measuring Malpractice in Modern Mobile Medicine
Rishi M. Diwan

Demand for greater use of mobile technology during patient treatment has markedly increased in the last decade. The unique advantages of “smartphone” technology have the potential to drastically alter the landscape of medical treatment. This Note discusses the numerous benefits of implementing mobile technology in healthcare settings. The author also explores the additional risks of liability that could arise from reliance on such technology. In light of these risks, the author concludes by addressing some safeguards that practitioners and hospitals may rely on to protect themselves from liability when utilizing mobile technology.

Issue 20.1

Justice and the Cultural Heritage Movement: Using Environmental Justice to Appraise Art and Antiquities Disputes
Dr. Derek Fincham

What does justice require? This paper aims to spark a conversation about the role of justice in art and antiquities disputes by introducing the concept of cultural justice. Borrowing from a principle known as environmental justice, cultural justice allows the application of critical scrutiny to the law and norms that govern cultural heritage. The history of environmental justice—including both its successes and failures—offers important lessons for the cultural heritage movement. Environmental and cultural injustice plagues the same nations and groups: Africa, Central and South America, and indigenous groups are denied the same environmental and cultural benefits. The cultural heritage movement has been subject to the same criticisms as the environmental justice movement, but has not had the benefit of an animating theoretical framework. The law strains to resolve art and antiquities disputes. Examining disputes through the lens of cultural justice allows us to move beyond thinking about art in terms of keeping it in museums (or the art trade) or returning it to its nation of origin. This paper applies Rawls’s theory of justice to cultural heritage and presents a taxonomy of cultural justice, examining in detail its distributive, procedural, corrective, and social aspects. Thinking about cultural justice allows a deeper understanding of the reasons why cultural heritage disputes are so difficult to resolve. By considering cultural justice, we can also begin to define the limits of what law and policy can do to remedy historical and contemporary art taking. These limits have eluded cultural heritage advocates, subjecting the cultural heritage movement to broad criticisms.


Mobilization and Poverty Law: Searching for Participatory Democracy Amid the Ashes of the War on Poverty
Wendy A. Bach

In 1964, at the height of the Civil Rights Movement, the federal government launched Community Action, a program that was to be designed and implemented with the maximum feasible participation of the poor. Today in governance theory, we are told once again that participation by affected communities in the mechanisms of governance has the ability to deepen democracy—to yield better policy and to engage new voices in the mechanisms of democracy. Mobilization and Poverty Law: Searching for Participatory Democracy Amid the Ashes of The War on Poverty turns to history to explore a question central to both governance theory and community lawyering: Do the participatory democracy mechanisms of new governance theory have the ability, or can they be wielded by advocates and poor communities, to render poverty more responsive to community needs? To answer these questions, Mobilization and Poverty Law provides a detailed chronicle of the creation and implementation of Community Action and maximum feasible participation and highlights the extraordinary story of its implementation in Durham, North Carolina. The Article offers a definition against which to measure whether participation was “robust” and concludes that three factors were crucial in realizing robust participation: (1) the existence of the statutory participatory mandate; (2) the flexibility wielded by administrators in implementing the mandate; and (3) the choice by the agency to fund autonomous, community-controlled groups as a mechanism to realize robust participation. The Article ends with two primary conclusions, the first directed at new governance and the second directed at those invested in community lawyering. For new governance, the history suggests that participatory structures, as currently constituted, are likely to lead to little more than tokenism. For advocates committed to support the efforts of communities to build and wield political power, however, the Article offers a more hopeful suggestion. Embracing what Scott Cummings has termed “constrained legalism,” the Article suggests that advocates might take a page from history and, like our predecessors, seek to create, out of the tokenistic nods to participatory governance in current policy, programs and structures that might actually yield both robust participation and poverty policy that, in the eyes of poor communities, actually meets their needs.


The Legality of Pre-Employment Credit Checks: A Proposed Model Statute to Remedy an Inequity
Beverley Earle, Gerald Madek, and David Missirian

Does having bad credit mean that you will perform poorly as an employee? Does it mean you are more likely to engage in illegal conduct on the job? Is this true whether you are a controller for a small, privately-held business, an employee with a company travel card with a $5000 limit or a purchasing card with a $1000 limit, or a janitor who enters the offices at night to clean but has no company credit cards? Should employers be free to use discretion in deciding what information they need to assure they are not making a negligent hire? Nine states have passed legislation to attempt to deal with this issue and twenty-six states are considering proposed legislation. Allowing credit checks, even for low-level jobs, appears punitive and possibly discriminatory on the basis of race, especially in the post-recession climate of 2012. Many people are facing an economic crisis—they have terrible credit, underwater mortgages, and significant medical debt, which could be compounded if they are unable to find work because of credit checks. This Article will review statutes and case law, propose a model statute, and discuss the policy implications for business and society.


Note

Confronting Religiously Motivated Psychological Maltreatment of Children: A Framework for Policy Reform
Chase Cooper

Although religion is generally thought of as a uniformly positive and benign influence on children, the reality is that children often suffer greatly from acts that would be considered abusive if performed in a non-religious context. This Note first considers child psychological maltreatment generally, arguing that the law has been slow to recognize and adequately protect children from psychological harms. This is in part because statutes—when they explicitly address psychological abuse at all—tend to focus on the demonstrable harm to the child, which is often difficult to detect with legal precision. Policymakers should instead follow the lead of child welfare and psychology experts, who define maltreatment based on the abusive or negligent acts or omissions of other people in relation to the child. The Note then argues that because the protections accorded religious and family-autonomy rights have historically far outweighed children’s rights, children who suffer under religiously motivated maltreatment are especially at risk. This Note advocates the nationwide adoption of a precise legal definition of child psychological maltreatment based on the best understandings of the psychological community. Once such a standard is in place, it should not be made impotent to protect children from religiously motivated harms by the recognition of judicial or legislative religious exemptions.