- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
Work-family policy debate in the United States has focused on work and the workplace, and has presumed its primary beneficiaries are women. Women’s increased participation in the workplace brought the conflict between work and family sharply into view, and generated solutions geared toward assisting women. An underlying assumption has been that men would change at home by taking on a fair share of family work and care, consistent with norms of equality and gender neutrality.
Consistent with these norms, if equality were defined as co-equal shared parenting to balance dual wage-earning, equality would generate a revolutionary shift in fatherhood. Recalibration toward equality, however, has not taken place. Women continue to not only do wage work but also do a “second shift” of household and family work.
Most men are not coequal caregivers; at best, they are secondary caregivers, at worst, uninvolved with their children.“New census data on family living arrangements suggest that fewer fathers may be participating in their children’s lives than in any period since the United States began keeping reliable statistics.” The persistence of inequality is linked to the minimal scope of the United States’ work-family policy as well as ongoing employment discrimination against women despite their increased presence in the workplace.
Beyond the lack of supportive policy and persistent discrimination, however, is the slow pace of change at home. The dramatic change in the position of women with respect to wage work—albeit still unequal to men—has not been matched by a similar change in men’s role and work at home. While the ideal of care has changed, the reality has shifted only slightly.What is the reason for this asymmetric pattern? The answer, I suggest, lies in the construction of masculinities.
If we want to achieve a different reality of men’s care, then we must reconstruct masculinities. In order to have a better father, you must have a better man. . .
For more information about Professor Dowd’s Donahue Lecture (which served as the basis for this article) as well as photos and audio from the event, please click here.
Federal sentencing law is in the midst of a period of profound change. In 1984, responding to concerns about excessive judicial discretion in sentencing, Congress created the United States Sentencing Commission to promulgate the United States Sentencing Guidelines (Guidelines), a complex and mandatory schedule of federal criminal sentences based on a multitude of offense- and offender-specific factors. The Guidelines were introduced in 1987 and governed federal sentencing for nearly twenty years. But in 2005, the Supreme Court held that the Guidelines, by requiring judges instead of juries to find facts that could increase a defendant’s sentence, violated the Sixth Amendment. The Court’s remedy was to render the Guidelines advisory only—a starting point but not necessarily the endpoint for sentencing decisions. Over the past several years, the Supreme Court and the lower federal courts have had to answer a range of questions about how the new advisory Guideline system would work in practice. Among the most consequential were the procedural question of how a district court should apply the now-advisory Guidelines, and the substantive question of whether a court could vary from the Guidelines on the basis of a policy disagreement with the Guidelines themselves rather than the circumstances of an individual defendant. The Supreme Court answered these two crucial questions in the Gall and Kimbrough cases in December 2007, yet these two decisions seemed to talk past each other in terms of sentencing procedure. Kimbrough authorized policy-based variances. Gall instructed courts how to apply the advisory
Guidelines in individual cases. But neither case explained how or when in the sentencing process courts should apply the policy-based variances the Court had just authorized. The result has been a lack of procedural uniformity among district courts applying policy-based variances, with most courts mingling policy and individualized considerations without specifying the role of each factor in determining sentences. Most courts have not even acknowledged, much less attempted to bridge, the gap between the substantive sentencing considerations authorized in Kimbrough and the procedural roadmap laid out in Gall. Academic discourse has likewise left this issue unaddressed.
This Article urges courts to reconcile Kimbrough and Gall by adding an analytical step to the sentencing process through which courts can explicitly apply policy considerations separately from, and prior to, individualized considerations. The blending of policy- and individual-based factors in sentencing adversely affects both the fairness of individual sentences and the development of the Sentencing Guidelines themselves. When courts blend different types of variances together, it is more difficult for them to exercise fully each type of discretion available under the advisory Guideline regime. Additionally, the Sentencing Commission relies on a continuing dialogue with district courts to fulfill its perpetual responsibility of refining the Guidelines based on empirical data and national experience; a clear articulation of courts’ grounds for variance, therefore, provides vital information about how the Guidelines can be improved. The creation of an independent analytical step will ensure faithfulness to Kimbrough and due consideration of each facet of the sentencing court’s discretion. The result will be a sentencing process that is more precise, more transparent, and ultimately fairer.
The average human loses between forty and one hundred strands of hair every day. Humans make one liter of saliva each day. In a lifetime, the average human sheds about forty pounds of skin. Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA). DNA has become an irrefutable method for identifying a person. In essence, humans are constantly leaving traces of their identity everywhere they go.
In the past decade, DNA has transformed criminal procedure jurisprudence. Law enforcement officers and prosecutors now rely heavily on DNA to solve crimes. DNA reveals unique genetic information about an individual’s race, ethnicity, and medical risks for diseases such as breast cancer or the risk of having a child with cystic fibrosis. Access to a person’s DNA provides a dangerously intimate blueprint of a person’s body. If misused, DNA information could cause a person to be stigmatized, discriminated against, or targeted for criminal prosecution. Some scientists have even proffered the idea of a behavioral gene predisposing an individual to a tendency to commit crimes. Easy access to DNA exposes an individual’s most private and intimate information to the world.
As genetic information becomes increasingly easy to obtain, it renews the timeless debate over precisely which circumstances trigger an individual’s right to privacy. An individual’s right to be left alone has deep roots in English common law, but it continues to be the subject of contentious legal debate today. Although advancements in science and technology have many advantages, these advancements can sometimes encroach upon individual privacy rights. Unless DNA is protected by law, government access to an individual’s genetic information will greatly undermine Americans’ Fourth Amendment rights. In response to the dire need to protect an individual’s private genetic information, the Massachusetts Legislature introduced a Genetic Bill of Rights (GBR) that would establish property and privacy rights for genetic information and genetic material.
This Note explores the proposed Genetic Bill of Rights—including the current proposed version’s flaws—and makes recommendations for a more effective version. Part II.A summarizes Fourth Amendment history and the basis of the constitutionally implied right to privacy. Part II.B presents different legal theories for protecting DNA. Part II.C studies and explains the proposed Massachusetts Genetic Bill of Rights. Part II.D studies the application of conflict of laws in criminal procedure. With conflict-of-laws principles as a foundation, Part III analyzes the effectiveness and validity of the proposed Genetic Bill of Rights. . .
On November 4, 1995, Leandro Andrade was arrested for the benign offense of shoplifting $84.70 worth of children’s movies from a K-Mart store located in Ontario, California. Just fourteen days later, Andrade was again arrested for stealing $68.84 of children’s movies in Montclair, California. A life of crime was nothing new to Andrade. In fact, Andrade had been in and out of prison since 1982 for a host of offenses, including petty theft, first-degree residential burglary, and transporting marijuana.
In 1994, California adopted a “Three Strikes and You’re Out” law (three strikes law), which is an antirecidivist law that mandates a sentence of twenty-five years to life in prison upon a criminal’s third felony conviction if the criminal has two prior serious or violent felony convictions. The State charged and convicted Andrade of two counts of petty theft with a prior conviction for shoplifting children’s videotapes—a felony in California. Tragically, because Andrade had two prior violent or serious felony convictions, a judge sentenced Andrade to serve two consecutive terms of twenty-five years to life in prison. Leandro Andrade will not be eligible for parole until 2046, at which time he will be eighty-seven years old.
If California’s three strikes law is considered overly broad, at the opposite end of the spectrum is Georgia’s version, which only applies to seven specific offenses. Colloquially known as Georgia’s “Seven Deadly Sins Law” (two strikes law), Georgia’s two strikes law is considered the nation’s harshest because it only takes two strikes—as opposed to three—for a criminal to be “out.” A criminal who is convicted for committing a second serious violent felony is sentenced to life in prison without the possibility of parole or any other sentence-reducing measures. In Ortiz v. State, Robert Ortiz was charged and convicted of rape, aggravated sodomy, and burglary in Georgia. Because the crimes of rape and aggravated sodomy are categorized as serious violent felonies, Ortiz will spend the rest of his life behind bars without any hope for parole.
Here are two versions of a three strikes law, two repeat offenders with differing criminal histories, two very different triggering offenses, and yet, both Leandro Andrade and Robert Ortiz will spend the rest of their lives behind bars. The message both California and Georgia are trying to send to recidivists, although not equally clear in California’s case, is that if you continually commit a certain class of felonies, you are going to prison for life. Yet, when juxtaposed, these specific outcomes inevitably beg the question: Does incarcerating a repeat offender for life—in Andrade’s case, for petty theft—violate the Eighth Amendment’s proscription against cruel and unusual punishment? Moreover, do the social and financial costs saved from prevented crimes warrant the frequent use of three strikes laws in California and Georgia? Or rather, are these laws needlessly filling prisons with lifelong prisoners who, as they age, will only cost states more to incarcerate?
This Note compares California’s and Georgia’s versions of a three strikes law. Part II of this Note briefly discusses the meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause as interpreted by the United States Supreme Court. Additionally, Part II explains the respective mechanics and effects of both California’s and Georgia’s versions. Finally, Part III of this article seeks to substantiate several claims: first, the United States Supreme Court has significantly diverged from its prior decisions interpreting the Eighth Amendment’s Cruel and Unusual Punishment Clause regarding noncapital punishments; second, Georgia’s version of a three strikes law warrants greater judicial deference than California’s; and third, although both California’s and Georgia’s versions of a three strikes law contribute to prison overcrowding and increased costs in their respective states, California’s version causes a greater burden. . .
Although U.S. economists note that the most recent U.S. recession came to an end in June 2009, belt tightening can still be felt throughout the economy, more than three years later. Perhaps nowhere is this more evident than in state budgets, which continue to face huge shortfalls and endure significant cutbacks. With legislatures generally unwilling to raise taxes to make up for these deficits, states have looked toward new sources—unclaimed property, in particular—to find much needed cash.
By some accounts, $35 billion of unclaimed property is currently held by states—an amount that continues to increase annually. Simply put, the transformation of unclaimed property into revenue first requires a state to “escheat,” or take custody of property from a “holder,” which is generally a corporation. Furthermore, “unclaimed property” usually refers to intangible property (such as amounts represented by uncashed checks, amounts in suspense, or outstanding stock) in the custody of a holder that actually belongs to another (known as the “owner”), but which has been inactive for a statutorily defined amount of time (the “dormancy period”). In their search for revenue, states have recently been escheating more unclaimed property than ever through the use of increasingly aggressive techniques. Although states do not take title to the property they recover, most state laws provide that at least some portion of funds received as unclaimed property is deposited in a state’s general fund, or go so far as to direct the proceeds from unclaimed property to fund specific state programs. The benefits of a state’s use of unclaimed property are compounded by the fact that underlying owners, to whom the property rightfully belongs, rarely claim escheated property from the state. Thus, states have begun to transform their unclaimed-property laws and regulations into revenue-raising mechanisms that undermine their original, consumer protection-oriented goal of reuniting missing owners with their property. This departure raises a host of due-process concerns for unclaimed-property holders, which should be considered a defense to aggressive state escheatment.
This Note will focus on the constitutional concerns raised by two specific techniques employed by states that have resulted in the escheatment of large quantities of unclaimed property: the use of contract auditors paid on a contingency basis to make unclaimed-property assessments against holders, and state and auditor reliance on statistical modeling and estimates to make assessments against holders when their unclaimed-property records are deemed incomplete or inadequate. This Note will begin by explaining the history and development of escheat law, from its common-law origins in England to its modern evolution in the United States. Particular attention will be paid to cases that have attempted to address issues relating to audit techniques and revenue-raising statutes. Finally, this Note will introduce new considerations and propose new procedures that legislatures, courts, and state unclaimedproperty administrators should heed to address procedural shortfalls in constitutionality and fairness. . .
The First Amendment protects the freedom of speech and press—liberties that include the right to disseminate certain information concerning governmental activities, including police work. A police officer may defend against a claim of violating a citizen’s constitutionally protected right to gather and disseminate information by invoking the doctrine of qualified immunity. Qualified immunity requires the government official to prove the constitutional right allegedly infringed upon was not clearly established at the time of the challenged conduct. In Glik v. Cunniffe, the Court of Appeals for the First Circuit addressed the existence of a constitutional right to film officers discharging their duty in public and assessed whether that right was clearly established at the time Glik did so. The court held that the First Circuit case law clearly establishes a First Amendment right to record public police activity, and therefore the police officers could not invoke the qualified-immunity doctrine.
As he passed the Boston Common—the oldest public park in the country—on October 1, 2007, Simon Glik witnessed three police officers arresting an individual. After hearing one bystander say to the officers, “You are hurting him, stop,” Glik began recording the arrest with his cell phone camera. After the officers handcuffed the suspect, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik responded: “I am recording this. I saw you punch him.” After the officers confirmed with Glik that his recording captured sound, the officers arrested Glik for unlawful audio recording in violation of Massachusetts’s wiretap statute. While detained at the South Boston police station, officers confiscated Glik’s cell phone and a computer flash drive as evidence.
The District Attorney charged Glik with violating the wiretap statute, disturbing the peace, and aiding the escape of a prisoner. After the Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner, the Boston Municipal Court, in February 2008, granted Glik’s motion to dismiss the final two charges: disturbing the peace, and violating the wiretap statute. The judge found that Glik’s exercise of his First Amendment right to film police did not disturb the peace, noting the officers’ dislike of Glik’s recording did not make this constitutionally protected activity unlawful. The judge also dismissed the wiretap charge for lack of probable cause because the statute requires a secret recording and the officers admitted Glik had recorded openly and in plain view. . .
Behind the current cacophony of concerns about the unemployment rate, slow economic recovery, and U.S. budget deficit, is the ever-present murmur of the impending economic impact baby boomers will have as they retire and rely on government benefits. In 2010 Social Security went “cash negative,” states threatened to drop out of the Medicaid program, and more individuals dipped into their 401k plans for current needs. The “silver tsunami” looms closer as the first members of the baby-boom generation turned sixty-five in 2011, and concerns over how to manage long-term care for elders increase at an individual, state, and federal level. State and federal governments’ concerns come from the heavy burden long-term care for boomers will put on government-funded health services at a time when governments face pressure to cut these services to decrease deficits. Individuals’ worries stem from the need to provide long-term care for themselves or for aging family members.
Individuals who care, or will care, for an aging relative must consider how long-term care duties can decrease both their earning potential in the workplace and their savings as they pay for an elderly relative’s necessities. Caregivers often cannot afford to cut down their time or quit their job outside the home. In order to continue caring for an elderly relative, an increasing number of caregivers are asking elder-law attorneys to draw up agreements in which the caregiver helps the elder for a certain number of hours each week in exchange for an hourly wage. These caregiving agreements benefit both parties by relieving financial strain on caregivers and by keeping elderly relatives out of nursing homes.
While caregiver agreements may reassure individual caregivers, these same agreements are a concern for states. State Medicaid agencies claim these agreements are often a front for elders to gift assets to their children, impoverish themselves, and qualify for the state to pay for long-term care in a nursing home. The high price of nursing home care would quickly deplete most seniors’ accumulated wealth; however, if elders can transfer their assets to their children via a “caregiver contract,” elders may qualify to have Medicaid pay for nursing home care, while ensuring that their posterity will receive an inheritance. States want to preserve scarce resources for those who truly cannot afford care.
This Note will explore the benefits and burdens of courts acknowledging and upholding caregiver agreements, ultimately arguing for more recognition of caregiving agreements to encourage greater numbers of caregivers for the burgeoning elder population. First, this Note will examine the parties to caregiver agreements and what influence their identities may have on a court’s evaluation of the agreement. Parties to a caregiver agreement are typically family members, so the initial discussion of the parties’ identities will lead to a discussion of the cultural and legal presumptions against family-member contracts. Then, turning more specifically to caregiver agreements, this Note will outline the considerations a Medicaid agency uses when deciding if an elder qualifies for benefits. State Medicaid agencies decide long-term care benefits; therefore, this Note will use Massachusetts as a case study to review caregiver agreements evaluated by the Office of Medicaid Board of Hearings and state courts. In light of the decisions in Massachusetts, this Note will propose clarifications to the Massachusetts Medicaid regulations to give Massachusetts and other states direction about how to allow caregivers who truly are rendering services to contract for their services, while avoiding giving elders Medicaid services if their “contract” was merely a gift. In addition, this Note will analyze current presumptions about family members and contracts. Finally, this Note will argue that acknowledging caregiver agreements will benefit caregivers, the elderly, and the state. . .
Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools. The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit’s approach, commonly referred to as the Tinker test. In Layshock ex rel. Layshock v. Hermitage School District, the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus. The court held that the school district could not regulate Layshock’s speech because not one of the limited circumstances permitting regulation—as prescribed by the Supreme Court—was present.
In December 2005, Layshock, a Hickory High School student, created a profile that mocked his Principal, Eric Trosch, on MySpace. Layshock created this profile using his grandmother’s computer, at her house, during nonschool hours. Layshock granted access to fellow students, and, not surprisingly, news of the profile “spread like wildfire” spawning at least three copycat profiles. Layshock did access the profile he created twice at school, but school officials took action based on the belief that Layshock’s speech was entirely off campus.
On December 21, school officials learned that Layshock may have created one of the false profiles and decided to call Layshock and his mother to a meeting with the Superintendent. At that meeting, Layshock admitted to creating the profile and, without any prompting, walked to Principal Trosch’s office to apologize. School officials took no disciplinary action at the meeting; however, in January 2006, school officials held a disciplinary hearing concluding Layshock had violated the school’s discipline code and instituted various punishments, including a ten-day suspension and placement in an alternative education program.
On January 27, 2006, the Layshocks filed a three-count complaint alleging that the school district had violated Layshock’s First Amendment right to free speech. The district court granted summary judgment in favor of Layshock because the school district failed to demonstrate a sufficient nexus between the profile Layshock made and a substantial disruption at the school. A three judge panel from the Third Circuit affirmed on appeal; however, the Third Circuit vacated this decision and that of a factually similar, yet differently decided, case, J.S. ex rel Snyder v Blue Mountain School District, opting to rehear both en banc to resolve the apparent intracircuit split. After the rehearings, the court reversed J.S. and reaffirmed the earlier holding in Layshock, that the regulation of Layshock’s speech violated the First Amendment. . .
In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court produced a decision worthy of Janus, the two-faced Roman god whose image appears on Janus Capital’s corporate logo. The five-to-four opinion by Justice Thomas, while paying lip service to the private right of action under Rule 10b-5, effectively cut off that right for many plaintiffs. The Court in Janus addressed the question of whether a mutual fund’s management could be liable to investors in the fund’s parent company for losses tied to misstatements in the fund’s prospectuses. Answering in the negative, the Court held only a third group—the fund’s independent board of trustees—could have “made” those misstatements under Rule 10b-5. Significantly, the Court concluded only those with “ultimate authority” over a statement are liable for making it—a new Rule 10b-5 standard apparently not limited to the unique structures of mutual fund families.
And so, in its zeal to extend the limitations of Central Bank of Denver v. First Interstate Bank of Denver, eliminating secondary liability for private plaintiffs under Rule 10b-5, the Janus majority provided a roadmap for avoiding primary liability, regardless of culpability. Indeed, the dissent predicted “guilty” management may now be able to launder a false statement through an “innocent” board while avoiding liability for lack of the ultimate authority to make that statement. Janus may have interpreted Rule 10b-5 so narrowly that conceivably no one could be primarily liable for “making” a demonstrably false statement–neither those who wrote it without the necessary authority nor those who approved it without the necessary intent.
Assuming the Court intended, as it said, to retain Rule 10b-5’s private right of action—and assuming Congress, in enacting antifraud legislation, intended someone be held liable for material misstatements in securities filings—this Note recommends interpreting the phrase “ultimate authority,” which is inadequately defined in Janus, to mean “ultimate control,” a phrase appearing synonymously in the majority opinion. As Justice Thomas reasoned, “[w]ithout control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right.” While the concept of ultimate authority leaves open the question of who is really responsible for a statement, the concept of ultimate control does not. Ultimately, the legislative intent and policies behind Rule 10b-5 will be served best by a precise definition of its contours. . .
On February 9, 2012, the United States Nuclear Regulatory Commission (NRC) brought an end to the atomic power industry’s thirty-four-year construction hiatus when it green-lighted the licensing of two state-of-the-art nuclear reactors in eastern Georgia. In In re Southern Nuclear Operating Co. [hereinafter Vogtle 3 & 4], the NRC considered whether Southern Nuclear Operating Company’s (SNC) application for two combined construction and operating licenses satisfied the applicable licensing standards set forth in the Atomic Energy Act of 1954 (AEA), the National Environmental Policy Act of 1969 (NEPA), and the agency’s own rules and regulations. By a 4-1 margin, with Chairman Gregory Jaczko as the lone dissenter, the Commission concluded that SNC fulfilled all statutory and regulatory prerequisites for full licensure and authorized the construction and operation of the third and fourth units (Units 3 and 4) at the company’s existing Vogtle Electric Generating Plant site.
Following two years of preliminary proceedings, on March 31, 2008, SNC formally submitted its license application for Units 3 and 4. In accordance with statutory and regulatory guidelines, SNC’s application included, among other things, general information relating to the proposed plant design, as well as the company’s financial viability and antitrust status. The most voluminous and highly scrutinized portion of the company’s application, however, was its final safety analysis report (FSAR)—an 828-page document describing at length the design basis, security plan, organizational structure, and all other radiological, environmental, and technical aspects of the proposed units. After accepting it for docketing, the NRC Staff (Staff) commenced an exhaustive review of SNC’s application, including a comprehensive FSAR evaluation and environmental-impacts analysis. The Staff’s efforts culminated in the August 2011 publication of its Final Safety Evaluation Report for Combined Licenses for Vogtle Electric Generating Plant, Units 3 and 4—a highly detailed, safetyoriented assessment communicating to the public and five NRC Commissioners (Commission) the Staff’s official approval of SNC’s license application.
Throughout the entire three-year application review and beyond, SNC and the Staff faced multiple legal challenges to both the sufficiency and content of the application and the adequacy of the Staff’s final safety evaluation. On November 17, 2008, in response to publication in the Federal Register of SNC’s pending application review, five nonprofit organizations (Joint Intervenors) petitioned to intervene as parties seeking to contest the combined license (COL) application for Units 3 and 4. In granting the petition, the Commission established a panel of the Atomic Safety and Licensing Board (Board), giving it jurisdiction to preside over the now-contested portion of the application proceeding. Joint Intervenors immediately filed three contentions alleging that the FSAR for Units 3 and 4 omitted critical safety information. Over the ensuing eighteen months, the Board heard oral arguments, allowed limited discovery, accepted written submissions, and entertained two additional safety-related contentions. After dismissing two of the three original contentions for failure to state a claim, on May 19, 2010, the Board granted SNC’s motion for summary disposition and dismissed as overly broad the Joint Intervenors’ sole remaining contention. . .