Brief for 885 law professors in support of maintaining adherence to the Roe decision

This brief opposes the overturn of "Roe v. Wade" and resists weakening "Roe's central holding" that would allow states to overturn legal abortion. The brief was written for 885 law professors. "Roe" was not a "constitutional aberration," or "an exercise of raw, judicial power." Some members of the Supreme Court seem to think that the state has "an overriding interest" in protecting fetal life. Some Court members have questioned "Roe's" trimester framework. A person's decision to abort should be done privately. If women are not free to choose abortion, they will not have equality. There is an absence of "express rights of privacy and procreational freedom" in the Constitution. "Roe" was 1 instance of the Court's recognition of constitutional rights that are not named explicitly. Historical materials are drawn on to show the link between trends in society and the "judicial recognition of unenumerated rights." The most serious questions about "Roe" deal with its trimester framework. Justice Blackmun's majority opinion said that the 1st trimester of pregnancy was personal. "Roe" said that abortions created a medical risk at the beginning of the 2nd trimester. Therefore, the government was more interested in the health of the mother at that time. The state could then regulate abortion "in ways that are reasonable related to maternal health." The start of the 3rd trimester was when the fetus was viable. The right of a woman to end her pregnancy "offends powerful moral forces." Some of "Roe's" critics had their scientific facts wrong. Medical authorities think Justice O'Connor is mistaken when she says that "Roe" is "on a collision course with itself." The 23rd to 24th week of pregnancies where the fetal organs can "sustain life outside the womb." This has not changed since "Roe" was decided in 1973, nor is it likely to in the future. Some "amici" believe that the state can never have an interest in the fetus. The state can not have an interest in the fetus distinct from the woman who will give birth to it. During previability, restricting a woman's procreational rights would not be scientifically supportable. The state does have an interest in "upholding the value of human life." "Roe" is "within the mainstream" of constitutional jurisprudence and should be reaffirmed.     

Lengthening the stem: allowing federally funded researchers to derive human pluripotent stem cells from embryos

Recent developments in fetal tissue research and stem cell research have led to dramatic breakthroughs in the search for cures for Parkinson's disease, Alzheimer's disease, diabetes, and a host of neurological disorders. Because this research involves fetal tissue and stem cells from human embryos, many complicated ethical and legal implications surround it. This Note explores the history of fetal tissue research and stem cell research, examines the surrounding ethical and legal issues, looks at the current state of federal law, and concludes that Congress should allow federally funded researchers to derive stem cells from discarded human embryos obtained from in vitro fertilization clinics.     

Sexual Orientation,Race, and Trauma as Predictors of Sexual Assault Recovery

Sexual minorities and racial minorities experience greater negative impact following sexual assault. We examined recovery from sexual assault among women who identified as heterosexual and bisexual across racial groups. A community sample of women (N?=?905) completed three yearly surveys about sexual victimization, recovery outcomes, race group, and sexual minority status. Bisexual women and Black women reported greater recovery problems. However, Black women improved more quickly on depression symptoms than non-Black women. Finally, repeated adult victimization uniquely undermined survivors’ recovery, even when controlling for child sexual abuse. Sexual minority and race status variables and their intersections with revictimization play roles in recovery and should be considered in treatment protocols for sexual assault survivors.     

Ensuring Insurance for Foster Care: Requiring Foster Parents to Obtain Liability Insurance to Cover Harm Done to Foster Children in their Care

This Note proposes that all states should require that foster parents have liability insurance before children are placed in their care. This Note also proposes that the liability insurance needs to cover not just harm to third parties but also harm to the foster children through the negligent acts of the foster parents. This legislation will allow foster children to have standing to bring claims against their foster parents and insurance companies and give them a greater opportunity for recovery. Currently, the policies and statutes governing the policies in place do not cover all types of harm that can occur during the foster parent–child relationship. Certain policies leave children who are harmed by their foster parents’ negligence unable to recover any damages from the people who have harmed them. Because foster parents can be left to defend the actions themselves, they often become judgment proof due to their low income, leaving the children who are harmed with little chance of recovery.

Key Points for the Family Court Community:
• States need to require foster parents to obtain liability insurance, which covers harm done by the foster children to third parties, harm to the home, and any harm done to the child by the foster parents.

     

Campaigns and the Selection of Policy-Seeking Representatives

Can voters learn meaningful information about candidates from their electoral campaigns? As with job market hiring, voters, like employers, cannot know the productivity of candidates, especially challengers, when they elect them. The real productivity of representatives only reveals itself after the election. We explore if the information revealed during the “hiring process” is a good signal of the legislative effort of elected representatives. In the incomplete information environment of election campaigns, candidates should turn to credible signals to indicate their “type” to voters. Campaigns—and campaigning—are means by which candidates can, in principle, signal their motivations to voters. Is a candidate’s behavior on the campaign trail informative about his or her behavior and effort as a legislator? Does it, for example, reveal whether a candidate will be more hard working and legislatively active? Using evidence from the European Parliament, we show that campaign activity prior to the election is not related to policy-seeking behavior in the legislature post-election. The finding also holds in two national-level settings and across a variety of measures of legislative effort. Those who campaign harder do seem more likely to win the election, but campaign effort seems to provide a poor guide to what the winner does once elected.     

Webster and women's equality

The National Abortion Rights Action League (NARAL) and the Women's Legal Defense Fund (WLDF) co-authored an "amicus curiae" brief in "Webster." The brief was written for 77 organizations who believe in equality of women. The brief said that constitutional protection of a woman's right to choose is guaranteed by the right to privacy. The brief said that if abortions were illegal, women would not be able to take place in society equally with men. Liberty would be taken away from women. If the state interferes with abortion, the principle of bodily integrity is violated. In "Winston v. Lee," the Supreme Court found that the state could not compel a criminal to undergo an invasive surgical procedure to retrieve a bullet necessary for the state to prosecute with. 1 in 4 women have a cesarean section, which requires a larger incision in the abdomen, and has many risks. Bearing and raising children often puts a damper on women's employment opportunities. Therefore, if the Supreme Court denied women the right to bear children when and where they wanted, women would not have the right to plan their futures. If the Supreme Court were to agree that "interest in potential life outweighs" a woman's tight to procreate autonomously, states could declare all abortions illegal, investigate them to see if they were induced on purpose, and murder women who induced them. Contraceptive devices could be declared illegal. Laws could be used to force women to submit to cesarean sections and other fetal surgery. Pre-viability abortion restrictions should be rejected because they have old-fashioned notions of women's role in society. They reinforce stereotypes. Missouri's law stresses aiding "potential," rather than actual life.     

Saving the Nation's Expendable Children: Amending State Education Laws to Encourage Keeping Students in School

Disciplinary codes are designed to govern the behavior of millions of students attending U.S. public schools. As currently implemented, a great majority of these codes afford school personnel expansive, if not full, discretion to impose any sanction they deem appropriate in response to a student's alleged misconduct. Suspension and expulsion are two frequently used exclusionary sanctions that result in a large group of students who are pushed out of their learning environments around the nation on a daily basis. These detrimental exclusionary punishments have been increasingly used to address minor misbehavior rather than be reserved solely for serious offenses. This Note will describe the harmful implications currently associated with suspending and expelling children as a means to address misbehavior in school. This Note will then propose that all states amend their current education laws to limit infractions that may be punishable by suspension and/or expulsion exclusively to felonies as well as discuss practical alternatives schools should consider as a response to student misconduct. Implementation of this proposal would minimize the high rate of children being removed from their classrooms and would ultimately heighten the opportunity for children to learn.     

THE REPRODUCTIVE AND PARENTAL RIGHTS OF INCARCERATED MOTHERS

Acknowledging the explosive growth in the number of incarcerated women in the United States, this Note critically examines the current treatment of mothers and expectant mothers in the U.S. prison system. This Note highlights the severe inadequacy of current prison policies and accompanying maltreatment of incarcerated women and their children, especially with regard to the frequent separation of mothers from their children and the poor health care available to expectant mothers. The damage inflicted by current prison policies must be comprehensively redressed through the creation of prison nursery programs, halfway houses, the provision of optimal prenatal care, and the elimination of the draconian practice of shackling pregnant women. Such reforms will not only benefit incarcerated women and their children, but will also deter recidivism and promote the welfare of the community at large.     

Genetic discrimination: Huntington's disease and the Americans with Disabilities Act

This Note discusses the potential for genetic discrimination, current views as to whether genetic conditions will be covered by the Americans with Disabilities Act ("ADA"), and the specific issue of whether presymptomatic persons who test positive for Huntington's disease should be classified as persons with a "disability" within the meaning of the ADA. In considering whether presymptomatic Huntington's individuals have a disability under the ADA, an analogy is made between Huntington's disease and HIV-positive status. Inter alia, Huntington's disease and HIV-positive status are analogous in that, at the time of diagnosis, victims of both diseases may have no symptoms and may remain healthy for a number of years; but even though the exact time of onset of both diseases is unascertainable, death of both victims within a given range of years is highly likely. Further, both Huntington's disease and HIV are transmitted to offspring at a relatively high rate. Given these similarities, the author argues that Huntington's individuals should be afforded the protections of the ADA for the same reasons that HIV-positive persons are protected.     

Victims With Voices: How Abused Women Conceptualize the Problem of Spousal Abuse and Implications for Intervention and Prevention

Working from the conceptualization of abused women as both victims of and experts on spousal abuse, this study compares how women who have been abused, and how men and women with either less direct or no experience with spousal abuse, understand the problem and their beliefs about how it should be addressed. Results of a telephone survey of Philadelphia adults (N = 1,850) indicate that although in many ways abused women's opinions regarding domestic violence do not differ from those of nonabused women, abused women are more likely to believe that society gives tacit consent to abusive behavior through its silence and that talking openly about the problem will make it easier to solve. These findings suggest that initiatives aimed at changing the social norm around domestic violence may assist in both intervention and prevention efforts.     

The Best Pharmaceuticals for Children Act of 2002: the rise of the voluntary incentive structure and congressional refusal to require pediatric testing

On January 4, 2002, President Bush signed into law the Best Pharmaceuticals for Children Act, which is the government's most comprehensive legislation regarding pediatric research to date. The Act offers pharmaceutical companies a six-month exclusivity term in return for their agreement to conduct pediatric tests on drugs. It also provides public funding and organizes private funding to help conduct pediatric research on those drugs that pharmaceutical companies opt not to test in children. This Note reviews the history of pediatric research and traces the development of the Best Pharmaceuticals for Children Act's unique incentive and public funding structure. The Note contends that, while the Act is comprehensive and promotes important pediatric studies, its incentive structure forces consumers and taxpayers to bear the costs of testing pharmaceuticals in children instead of the manufacturers who research, develop, and market those drugs. Congress should consider mandating pediatric studies in any future enactment of the legislation.     

The Need for a Stronger Definition: Recognizing Abandonment as a form of Elder Abuse Across the United States

Elder abuse is a growing public health problem in the United States and statistics show that each year, hundreds of thousands of elders are abused in some manner. This Note discusses elder abuse while focusing specifically on the occurrence of elder abandonment and how the majority of states do not recognize elder abandonment as a form of elder abuse in their statutes. Moreover, this Note proposes a model statute to be adopted by every state in an effort for elder abandonment to become more widely reported. Elder abandonment is an unfortunate phenomenon and those who contribute to elder abandonment should face criminal liability similar to those abusers who engage in elder neglect or other types of elder abuse. Furthermore, this Note emphasizes that there should be a greater focus on how caregivers can seek assistance in order to prevent elder abuse in the United States.     

不动产一物二卖问题研究

对于不动产一物二卖,社会一般观念认为,出卖人失信背义,应保护第一买受人。学说与判例的主流观点则认为,第二买卖合同的效力并不因第一买卖合同的存在本身而受影响,若第二买受人先完成登记,即可取得标的物所有权。不动产的一物二卖应区分不同情形,产生出卖人交出其第二次出卖所获利益、第二买受人不能取得所有权以及出卖人与第二买受人承担侵权损害赔偿责任等法律效果。在这一背景下,当前学说与判例的主流观点殊值检讨与修正,以重回守信与公平的轨道。     

Social Support Choices for Help with Abusive Relationships: Perceptions of African American Women

A recent national telephone study of the African American community found that over 90% of respondents would feel comfortable talking to a family member or friend who was being abused about the abuse, with the majority advising she get help from a domestic violence program. The purpose of this study was to understand how comfortable abused women would feel talking to members of her support system about the abuse and how comfortable women who have not experienced partner abuse would feel if they were abused. Over 70% of women who have experienced abuse reported at least some comfort getting assistance for abuse from a friend, clergy/spiritual leader, Black community member, family member their age, or physician. Women who reported never experiencing physical or sexual partner violence were less likely to perceive feeling comfortable getting assistance from their social support systems (both formal and informal) if they were abused. Implications of these findings are discussed.     

Future fear: prenatal duties imposed by private parties.

The national abortion debate, rising drug use and homelessness, and the return to conservatism intersect in the trend which increasingly recognizes fetal rights, often at the expense of women's rights. Pregnant women, as never before, are faced with criminal charges and physical invasions in the name of protection of fetuses. This Note examines the sociological forces creating these situations and suggests better solutions. The Note cautions against the future fear that private parties will claim a legal right to interfere with a pregnant woman's behavior, and illustrates the need to prevent it.     

Women who kill in drug market situations

Recent studies of women and homicide have shown that lethal violence by women is a more complex phenomenon than merely self-defense against abusive partners. In this paper we examine cases of homicide by women who killed in drug market situations to explore the ways in which changing drug markets may have influenced women's involvement in lethal violence. From open-ended and semistructured interviews with 215 women sentenced to prison in New York State for homicide, we identified 19 women whose cases involved a drug market situation. Through qualitative analysis of the narratives offered by these women to explain their involvement in the killing, we found evidence that women will use violence, as will men, to protect or augment an economic interest in a drug market. From further analysis, however, we concluded that even in a clearly economic context in which women are able to acquire their own economic interest, some women will kill or participate in a killing in connection with their relationship with a male business or intimate partner. That is, women who kill in the economic context of a drug market may kill for economic reasons, but the specific circumstances of involvement in a drug market do not necessarily negate the significance of gender.     

Jurors' Perceptions of Adolescent Sexual Assault Victims Who Have Intellectual Disabilities

Children and adolescents with intellectual disabilities are especially likely to be sexually abused. Even so, their claims are not likely to be heard in court, possibly because people assume that jurors will not believe them. We tested this assumption in a mock-trial study in which 160 men and women watched videotaped excerpts from an actual trial. As predicted, when the 16-year-old sexual assault victim was portrayed as mildly mentally retarded instead of as having average intelligence, jurors were more likely to vote guilty and had more confidence in the defendant's guilt; considered the victim to be more credible and the defendant to be less credible as witnesses; and rated the victim as more honest, less capable of fabricating the sexual abuse accusation, and less likely to have fabricated the sexual abuse accusation. Men and women were affected similarly by the disability manipulation, but women were generally more pro-prosecution in their case judgments and perceptions than were men. Finally, jurors who had more liberal views toward persons with disabilities were more likely than other jurors to make pro-prosecution judgments on measures of guilt. Implications for psychological theory and the law are discussed.     

Race and Officer Decision Making: Examining Differences in Arrest Outcomes between Black and White Officers

Since the 1960s, one of the major reform efforts in law enforcement has been to increase the number of Black Americans within police agencies and on patrol in the streets. The general premise behind these efforts has been that increased diversity will improve police–community relations and will decrease biased police behavior, particularly against Black citizens. Policies seeking to reform policing through increasing the numbers of African American officers have been implemented with little empirical evidence that an officer's race (or ethnicity) is actually related to their behavior towards citizens, in particular arrest decisions. Using data from systematic social observations of police–citizen encounters in Cincinnati, OH, this study examines the influence of officer race on arrest outcomes, focusing on the behavior of Black officers. Findings suggest that officer race has direct influence on arrest outcomes and there are substantive differences between White and Black officers in the decision to arrest. In general, White officers in our study were more likely to arrest suspects than Black officers, but Black suspects were more likely to be arrested when the decision maker was a Black officer.     

Race and Determinations of Discrimination: Vigilance,Cynicism, Skepticism,and Attitudes about Legal Mobilization in Employment Civil Rights

What factors affect whether ordinary citizens believe that workplace decisions involving African‐American employees rise to the level of discrimination? When do observers believe targets of possible race discrimination should consider mobilizing the law? We use a factorial design vignette study administered to a nationally representative sample of 2,087 ordinary people to address these questions. The “vigilance hypothesis” predicts that minorities will be more likely to perceive discrimination than whites. Our analysis partially confirms this: African Americans perceive anti‐Black discrimination at higher rates than do whites and Latinos, while Latinos do not show a significant difference from whites. Where respondents believe discrimination occurred, we analyze what influences whether respondents might recommend legal mobilization. The “cynicism hypothesis” suggests that people of color may be less likely to favor using law. We find, however, that African‐American and Latino respondents express more confidence in civil litigation, compared to whites. Further, African Americans express the strongest support for legal mobilization (recommending that a “friend” contact an attorney), while whites and Latinos do not differ in mobilization recommendations.     

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them. What lessons can be learnt from this case about how the Australian High Court is, or should be, approaching medical negligence cases and its role as guardian of the Australian common law?