Don't Even Ask! A Two-Level Analysis of Government Lawsuits Against Citizen and Media Access Requestors

Access-to-information statutes are designed to empower the public and the media to scrutinize the government. In approximately three dozen cases decided since 1975, however, government entities used those statutes to sue citizens and media outlets that requested access to government information. The government lawsuits sought declaratory judgments as to the government's legal obligations under state open meetings and public records laws. This article analyzes the government lawsuits by exploring the social architecture they create. This social architecture is based on the idea that law not only settles individual disputes, but also defines power relationships among groups in society. The article suggests that government lawsuits against access requestors turn access law on its head and deprive citizens of the power over government granted to them by access statutes.     

Employing the Mental Health System to Control Sex Offenders After Penal Incarceration*

In the 1930s, several states provided civil commitment in mental institutions for certain sex offenders. Civil commitment of these sex offenders abated after most states repealed their statutes in the 1960s. In the 1980s, however, these statutes returned, as outraged citizens deplored the offenses of repeated sex offenders. The author of this essay examines civil commitment statutes for sex offenders in Washington and Minnesota, two of the leading states in this area, as well as recent rulings from each state's Supreme Court upholding the constitutionality of these statutes. Particularly, the author focuses on the psychiatric or mental health discussions by the justices in the majority in both state rulings. Furthermore, the author criticizes the legislatively defined mental abnormality statutes that sanction these commitments, proposes use of the ordinary civil commitment statutes for individuals who are seriously mentally ill, and concludes that sex offenders who do not meet the criteria for traditional civil commitment should be handled by the criminal justice system.     

Three Strikes Legislation and Sentencing Commission Objectives

Between 1993 and 1997, state legislatures across the country passed legislation popularly known as "three strikes and you're out" laws. These laws appeared at a time when sentencing commissions existed in many states, and the commissions were involved in the legislative debates leading to the votes on three strikes laws. Thus, the passage of three strikes laws can shed light on one type of interaction between sentencing commissions and legislatures. This article posits a variety of objectives for sentencing commissions during three strikes debates, each a response to the recurring "pathologies" that appear when legislative, judicial, and executive branch officials create sentencing policy. A survey of states that have passed three strikes laws indicates that sentencing commissions have not made any systematic difference in the legislative debates on these statutes. Commissions have little reason to oppose these laws absolutely, and could lose political credibility by doing so. Commissions have incentives instead to argue for limiting the scope of these statutes. Where commissions have been involved in the debates about habitual felon legislation, they have emphasized limits on judicial discretion, focused on the quality of legislative deliberations rather than on legislative outcomes, and devoted little attention to prosecutorial charging decisions.     

Selective justice,genetic discrimination,and insurance: should we single out genes in our laws?

This article discusses the desirability of legislation focusing on genetic discrimination, in particular in the context of insurance. Many American states and some European countries as well as the Council of Europe have introduced protective measures against discrimination on the basis of genetic susceptibility. The author questions their effectiveness and queries whether they may be inequitable, because they fail to address more fundamental underlying issues related to the nature of insurance, access to health care, and unequal distribution of wealth. There is also a problem of definition in these statutes. They fail to capture what constitutes genetic information. Nonetheless, the author argues it is important to consider the social consequences of genetic testing. Michael Walzer's theory of justice is used to examine the role of insurance and health care. Using this approach, the author finds the American system of distribution for health care to be problematic. This is then used to inform the author's discussion of the future of health care in Canada. Anti-discrimination provisions could be used in a way that is consistent with Walzer's theory of justice. They would encompass both genetic and non-genetic health factors. These can be modelled on current anti-discrimination statutes in Canada. The author then proposes administrative committee structures to regulate the use of genetic data in Canada.     

GRANDPARENT VISITATION RIGHTS

In recent years, legislators in all fifty states have given grandparents rights to petition for visitation privileges with grandchildren that can be enforced over parental objections. Grandparent visitation rights reflect an effort to protect meaningful relationships children enjoy with nonparental caregivers, enlist the assistance of extended family when the child's nuclear family is disrupted, and defend the interests of grandparents themselves. This psycholegal analysis explores the direct and indirect consequences of grandparent visitation statutes for family functioning. Statutory provisions are summarized, and the effects of these statutes are evaluated in light of what is known about the role of grandparents in child development, how courts evaluate children's "best interests" in grandparent visitation disputes, and how these statutes can alter family functioning in informal ways. The authors conclude that there are risks as well as benefits to children and families in grandparent visitation statutes, and suggest directions for procedural and statutory reform.     

Toward Rational Criminal HIV Exposure Laws

This article examines criminal HIV exposure statues that address undisclosed exposure through consensual sexual activity. Twenty-seven U.S. states have adopted some form of HIV exposure statute. Thirteen of these statutes specifically address exposure through sexual activity, while another eleven statutes could be applied to exposure through sexual activity, while another eleven statutes could be applied to exposure through consensual sexual interactions. Although the penalties for breach of these laws are often severe, the risk of actual harm posed by the many of the behaviors prescribed is minimal and in some cases virtually nonexistent. After an overview of the various types of U.S. criminal HIV exposure statutes and discussion of the risk of HIV transmission through the various sexual activities addressed in the laws, the authors highlight the tenuous relationship between proscribed activities and actual risk of virus transmission. The authors address this limitation in the law by offering a framework for the evaluation and construction of HIV exposure statutes that considers not only the intent of the HIV-positive actor but also the risk that his or her conduct poses to others.     

Sore Loser Laws and Congressional Polarization

To enhance explanations for party polarization in the U.S. Congress, we focus on an unappreciated legal structure known as the sore loser law. By restricting candidates who lose partisan primaries from subsequently appearing on the general election ballot as independents or as nominees of other parties, these laws give greater control over ballot access to the party bases, thus producing more extreme major party nominees. Using several different measures of candidate and legislator ideology, we find that sore loser laws account for as much as a tenth of the ideological divide between the major parties.     

Sexually Violent Predator Evaluations: Empirical Evidence,Strategies for Professionals,and Research Directions

Several states have passed civil commitment laws that allow the precautionary detention of sex offenders who have completed their criminal sentences. Over 2,500 sex offenders have been committed across states with such statutes and several thousand more sex offenders have been evaluated. Most statutes call for an evaluation of risk by a mental health professional and, although each state statute is worded differently, three main elements common to sexually violent predator evaluations are used to guide evaluators: mental abnormality, volitional capacity, and likelihood of future sexual violence. The current article presents empirical evidence for the main tenants of these forensic evaluations, provides recommendations for evaluators in light of current limitations of evidence, and offers suggestions for future research in this area of forensic assessment.     

A summary and analysis of warrantless arrest statutes for domestic violence in the United States

In the United States, all 50 states and the District of Columbia have enacted statutes that allow police officers to make warrantless arrests for domestic violence given probable cause; however, state laws differ from one another in multiple, important ways. Research on domestic violence warrantless arrest laws rarely describe them as anything more than discretionary, preferred, or mandatory, either within their analyses or within the texts of their publications; researchers, and their audiences, may not be aware of the vast and potentially important differences among these laws. In this article, we list the domestic violence warrantless arrest laws for each state, and discuss them in terms of five common elements: the phrasing of the arrest authority; whether additional factors to domestic violence are required to trigger the arrest authority; qualifications to the arrest authority; time limits for warrantless arrest to occur; and whether police officers are required to report why they made a dual or no arrest. We then analyze the common elements of the laws, paying particular attention to how they may encourage or discourage the arrest of alleged domestic violence perpetrators. It is critical that researchers, advocates, and policymakers are aware of these variations in state statutes when conducting or interpreting research or making policy recommendations.     

Criteria for Allocation of Responsibility under State Law

Numerous state statutes provide guidance for allocating responsibility and response costs among potentially responsible parties at environmentally contaminated sites. Twenty-eight states explicitly or implicitly address joint and several liability; thirty states address allocation criteria; and two states identify how orphan share costs are shared. Of the thirty states that address allocation criteria in their statutes, twenty-four specify one or more criteria that may be applied to avoid joint and several liability, and twenty-nine permit the allocation of responsibility using unspecified equitable factors. The state allocation criteria tabulated and discussed in this article can be used by counsel and their technical consultants and experts to assess which, if any, state-specific criteria are most applicable to a particular site, given the technical, historical, financial, and regulatory information that may be available for that site.     

Loathing the sinner, medicalizing the sin: why sexually violent predator statutes are unjust

In seventeen states, persons convicted of one or more sexually violent offenses may be involuntarily civilly committed at the end of their criminal terms if they suffer from a mental disorder that renders them likely to reoffend sexually. These statutes place the burden on states to show that the sex offender meets the United States Constitutional standard of dangerousness. The key to proving dangerousness is proof of a mental disorder. However, the United States Supreme Court recently found that the offender need not be mentally ill. He need only "suffer" from "mental abnormality" or "personality disorder" that affects his cognitive, emotional or volitional capacities such that he is highly likely to sexually reoffend. These statutes are expressions of disgust: a fear of contamination by persons who engage in sexual conduct that forces us to confront our dark impulses. We do not merely hate the sin; we hate the sinner, and we want the sinner to be removed from our presence. Moreover, the emotions these statutes express are the source of widespread moral panic not warranted by data about recidivism risk. Laws that express disgust are likely to result in the unjust treatment of sex offenders.     

The Difference Law Makes: Domestic Atrocity Laws and Human Rights Prosecutions

This article offers the first systematic analysis of the effects of domestic atrocity laws on human rights prosecutions. Scholars have identified various political and sociological factors to explain the striking rise in human rights prosecutions over the past 30 years, yet the role of domestic criminal law in enabling such prosecutions has largely been unexamined. That is surprising given that international legal prohibitions against human rights atrocities are designed to be enforced by domestic courts applying domestic criminal law. We argue that domestic criminal laws against genocide and crimes against humanity facilitate human rights prosecutions in post‐authoritarian states by helping to overcome formal legal roadblocks to prosecution, such as retroactivity, amnesties, immunities, and statutes of limitations. Using original data on domestic atrocity laws and human rights prosecutions in new democracies, we find that atrocity laws increase the speed with which new democracies pursue prosecutions, as well as the overall numbers of trials they initiate and complete.     

WHO'S YOUR DADDY?: THE INHERENT UNFAIRNESS OF THE MARITAL PRESUMPTION FOR CHILDREN OF UNMARRIED PARENTS*

Many states have marital presumptions of legitimacy, which provide children born to married parents with protection against paternity lawsuits questioning their legitimacy. However, most states do not have legitimacy presumption statutes for unmarried couples. This lack of equality between married and unmarried couples makes it so that children born to unmarried parents, who have developed a psychological bond with a man they have always thought to be their father, are not afforded the same protection as other children in similar situations, simply because their parents were not married at the time of their birth. Therefore, this Note advocates for states to amend their paternity statutes to provide protection against nonpaternity lawsuits to psychological fathers and their psychological children. State statutes should provide a psychological father with the right to be declared the legal parent of his psychological child in cases where the child's legal father has been substantially absent from the child's life.     

Reforming Natural Gas Fracking Regulations in 2017–2018: How Should States Enforce Regulations?

While much scholarly work has been published on hydraulic fracturing regulatory frameworks, there is little discussion on the enforcement mechanisms of these regulations and statutes. This article explores state hydraulic fracturing regulations and the expansion of a criminal framework to enforce compliance. More specifically, this article takes a comparative look at fracking enforcement regimes in California and several states with the most hydraulic fracturing activities. First, the article discusses fracking's economic benefits and environmental issues. The article then analyzes federal regulations, (which essentially leaves the bulk of regulation and enforcement to state and local governments) and state enforcement systems in California and the four states with the most fracking wells (Texas, Wyoming, Pennsylvania, and Colorado). California, a state that is pushing for more renewable resources, has robust regulations under Senate Bill 4. In the end, states that rely heavily on fracking should reform the enforcement mechanisms to disincentive noncompliance. Regulatory regimes in the other states appear to have deficiencies that could be remedied by adopting stricter enforcement mechanisms—such as criminal sanctions—that would disincentivize noncompliance, which could lead to large-scale environmental disasters. This article postulates that a model system incorporating a variety of methods including increased criminal enforcement could provide for proper remedies, justice, and deterrence. An ideal enforcement framework for effective deterrence should focus on transparency, flexibility, trusted delegation, and proportionality.     

Can a leopard change its spots? Strategic behavior versus professional role conception during Ukraine's 2014 court chair elections

Do judges respond to institutional and strategic incentives or do they strictly follow dominant professional role conceptions? This article weighs in by exploring whether an ideational shift toward judicial empowerment and independence can germinate from institutional reforms. Ukraine's 2014 Euromaidan revolution and the comprehensive judicial reform adopted in its wake provide a test of the competing theoretical accounts. A judicial lustration law sacked all incumbent court chairs, who had been appointed by the executive, and gave Ukrainian judges the right to elect new chairs via secret ballot. I analyze this radical step toward judicial self-government using an original data set with individual- and court-level data. The key finding is that less than a fifth of Ukrainian judges embraced their newly granted agency and elected a new chair for their court, whereas the overwhelming majority followed dominant professional norms of deference and reelected the sacked court chairs. This finding holds for all rungs of the judicial hierarchy and for all regions of Ukraine. Even protégés of ousted president Yanukovych won the secret ballot vote by their peers more often than they lost it. Beyond Ukraine, these results suggest that empowering individual judges in the highly hierarchical structure of a civil law judiciary is unlikely to lead to a judicial behavior shift, at least in the short run.     

From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family

The wrongful death statutes enacted in most states during the mid-nineteenth century have long represented a classic moment in the narrative of American legal history. Historians have not observed, however, that American wrongful death statutes amended the English act on which they were modeled to introduce a gender asymmetry peculiar to the United States. Led by New York, most American jurisdictions limited wrongful death actions to "the widow and next of kin" of the decedent, categories that did not include husbands of deceased wives. Thus, a wife could bring a wrongful death action for the death of her husband, but a husband could not bring a wrongful death action on his own behalf for the death of his wife.
The wrongful death statutes represent a heretofore unrecognized conjuncture of the beginnings of the modem law of torts with the nineteenth-century legal reconstruction of the family. The statutes mowed accident litigation away from an eighteenth-century model of masters suing for loss of the services of a servant, slave, wife, or child, toward the now more familiar model of suits for loss of wages and support. Moreover, the gender asymmetry of the statutes embodied and reproduced a new nineteenth-century conception of the family in which men worked as free laborers and women were confined to relatively narrow domestic roles, removed from the market and dependent for their support on the wages of their husbands. Indeed, the statutes anticipated by over half a century the American welfare state's two-track approach to support for wage-earning men and dependent women.     

A Need Not Being Met: Providing Paid Family and Medical Leave for All Americans

Many parents in the United States face the quandary of whether to take time off from work to care for themselves, their children, or other family member, understanding that their jobs may not be there upon return and they will receive no income during their leave. The Family and Medical Leave Act has not lifted this burden; it only provides for unpaid leave. Four states and several cities have implemented paid family and medical leave statutes with both employees and employers benefiting. This Note proposes a uniform paid family and medical leave statute based on other countries’ statutes; proposed federal legislation; and statutes in New York, California, and San Francisco.     

The Impact of District Magnitude on Voter Drop‐Off and Roll‐Off in American Elections

This study demonstrates that multimember districts (MMDs) complicate ballots, reduce voter information, and increase incentives for strategic voting in ways that reduce voter participation. Using data from three states that elect members of at least one legislative chamber from both single‐member districts (SMDs) and MMDs, we test hypotheses about the impact on MMDs on ballot drop‐off (selecting fewer candidates for an office than permissible) and roll‐off (not voting in down‐ballot races). We find support for both sets of hypotheses, with the strongest results related to ballot drop‐off. The results have broad implications for voter participation, representation, and election administration in the many states and localities that use MMDs to elect public officials.