Category: Notes

Revisiting the T.J. Hooper: Stating What is Constitutionally Required of Defense Attorneys Under the Strickland Evaluation of Attorney Performance – Note by Lauren McGrory Johnson

From Volume 87, Number 3 (March 2014)
DOWNLOAD PDF

The story has become all too familiar. Facing felony charges, an indigent defendant is appointed a public defender to represent him. Working under a crushing caseload of 500 felonies per year, the public defender has around an hour to dispose of the case. He meets with the defendant once, quickly advises him to accept the plea deal offered by the prosecutor, and moves on to the next defendant. No investigation; no interviewing potential witnesses—just take the plea.

The case described above was appealed to the Washington State Supreme Court in 2010, and involved the prosecution of a boy who was a mere twelve-years old. The boy’s case, combined with pressure from state defense organizations and local media, convinced the state supreme court to take action in 2012 and enact mandatory performance standards, including strict caseload limits, that all defense attorneys in Washington must comply with beginning September 2013. The standards were adopted after a long struggle with underfunding and overwhelming caseloads among Washington public defender offices, a problem not unique to that state.

 

87_805

(D)evolving Standards of Decency: The Unworkability of Current Eighth Amendment Jurisprudence as Illustrated by Kosilek v. Spencer – Note by Rachael Rezabek

From Volume 87, Number 2 (January 2014)
DOWNLOAD PDF

Michelle (Robert) Kosilek first exhibited signs of gender identity disorder (“GID”) at the tender age of three years old. An orphan during most of her early childhood, Kosilek would sneak over to the female side of the Catholic orphanage where she lived so that she could “wear girls’ clothing and play with girls”—behaviors for which she received severe physical punishment. Undeterred, Kosilek continued to exhibit signs of GID throughout her childhood and adolescence; she also continued to be abused. As one of her psychiatrist reports stated, “At age 13, [Kosilek] developed what was most likely normal transient gynecomastia. She commented to her mother [who had since removed Kosilek from the orphanage], ‘See? I really am a girl.’ Her stepfather overheard the remark and assaulted her with a broken beer bottle.” After this incident, Kosilek began running away; she left home permanently at age fifteen.

 

87_389

Performance-Enhancing Drugs in Boxing: Preventing the Sweet Science from Becoming Chemical Warfare – Note by Jonathan H. Koh

From Volume 87, Number 2 (January 2014)
DOWNLOAD PDF

Throughout its history, the sport of boxing has been known as much for its corruption and scandals as its courageous fighters and memorable bouts. Indeed, it has been referred to by some as the “red light district of sport[s].” Even today, boxing is plagued by fixed fights, exploitative promoters, greedy sanctioning organizations, unnecessary health risks to boxers, incompetent state athletic commissions, and a confusing array of weight divisions with a multitude of world champions. In fact, some of these issues were so rampant that Congress, in 1996 and 2000, passed federal legislation attempting to address them.

 

87_335

Talking “Religious, Superstitious Nonsense” in the Classroom: When Do Teachers’ Disparaging Comments About Religion Run Afoul of the Establishment Clause? – Note by Jennifer L. Bryant

From Volume 86, Number 6 (September 2013)
DOWNLOAD PDF

A sizable contingent of Christians in America are profoundly anxious, not only because of a fear that Christianity is losing its grip on the culture, but also because of a perception that religious faith has become an acceptable target for scorn and ridicule. This anxiety, though ever present, inevitably intensifies whenever the religious right is dealt a political setback. Predictably, then, the rhetoric of religious victimhood began to escalate after Barack Obama won the presidency. America, it would seem, is now embattled in a full-fledged “war on Christianity.” These feelings stem in part from the rapidly changing religious landscape. The ranks of the religiously unaffiliated have been steadily swelling in recent years. In 2012 Pew found that one-fifth of Americans—and one-third of those under thirty—claim no religious affiliation, a marked increase from just five years earlier.

But the alarmist rhetoric nevertheless strikes many as unjustified and even a little silly. For one thing, President Obama has, of course, spoken about his personal Christian faith on more than one occasion. A man who publicly testifies that Jesus Christ has died for his sins makes for a curious leader in a crusade against Christianity. In addition, almost 75 percent of Americans still identify as Christians and the ranks of atheists and agnostics, though increasing, are still rather negligible. Unsurprisingly, then, many find it difficult to get behind the notion that religion in general or Christianity in particular is under legitimate attack. When voiced against a backdrop of two centuries of uninterrupted representation at the highest levels of government, the grievances of the supposedly victimized Christian majority are hard to take seriously. As a result, the gripes from religious conservatives often spur a self-fulfilling and even self-exacerbating cycle, as the complaints themselves become sources of ridicule and the feelings of victimization redouble. But while the popular discourse is dominated by a back and forth between hyperbolic bombast on one side and bewildered scoffing on the other, religious persecution is, of course, no laughing matter. Moreover, what “may seem [like] silly or wrong-headed” sensitivity to some is a deeply felt, “sincerely held . . . belief” to others.

 

86_1343

Bankruptcy-Remote Special Purpose Entities: An Opportunity For Investors To Maximize the Value of Their Returns While Undergoing More Careful and Realistic Risk Analysis – Note by Katherine J. Baudistel

From Volume 86, Number 6 (September 2013)
DOWNLOAD PDF

The world of business and finance has become increasingly complex. Within the recent past, we have experienced significant improvements to finance as novel structures and concepts are created to meet people’s varied needs. For example, new business structures have emerged, including limited partnerships, limited liability companies, and even series LLCs. Simple lending and borrowing has changed to make debt more desirable and to further the economic growth of businesses. Commercial mortgage-backed securities allow companies to raise capital at lower interest rates. Parent-subsidiary relationships enable businesses to isolate their liability. Debt can be structured with numerous mezzanine tiers, each comprised of perhaps an unidentifiable number of investors

 
86_1309

The Defibrillation of NOTA: How Establishing Federal Regulation of Waitlist Eligibility May Save Organ Transplant Patients with Disabilities from Flat-Lining – Note by Danielle Richards

From Volume 87, Number 1 (September 2013)
DOWNLOAD PDF

Imagine this: thirty-five-year-old identical twin males are admitted into a hospital for congestive heart failure. Neither twin smokes nor drinks. Neither has other underlying medical conditions. There is, however, one distinct difference between them: at birth, twin “A,” Alex, was delivered normally, but twin “B,” Brian, had his umbilical cord wrapped around his neck, causing oxygen deprivation and resulting in moderate mental disability. As adults, Alex is completely independent, but Brian is not, as he lives with his elderly parents. Both twins are stubborn, but a few times, Brian has reacted especially negatively when placed in new and stressful situations.

The twins have the same doctor who determines that both are equally sick, concluding that each will survive only with a heart transplant. Although it seems Alex can comply with postoperative treatment—first, with help from family and later, alone—Brian may not be able to comply by himself. His parents and his sister, however, are willing to provide Brian with the additional support he needs to comply, such as ensuring he takes his medication, follows other medical restrictions, and attends regular follow-up appointments. If Brian can comply with the postoperative treatment with or without help from his family, the doctor predicts Brian’s long-term prospects for life-prolongation will be the same as Alex’s prospects.

After evaluating the twins, the doctor has to decide independently whether to place each on the national heart transplant waitlist. Knowing the above, what should the doctor decide? Should Alex be placed on the heart transplant waitlist? Should Brian? Should the doctor consider Brian’s mental disability when making his decision? Should it matter that Brian’s parents and sisters have agreed to provide him with additional support?

 

87_151

Disapproving Death: Amending the Interstate Agreement on Detainers in Light of United States v. Pleau – Note by John Jason Kreager

From Volume 87, Number 1 (September 2013)
DOWNLOAD PDF

Dear Governor Chafee,

My brother was murdered by Jason Pleau.

Our family is hoping for justice for David. It is time for you to stop wasting taxpayers money on this attempt to protect a murderer from being properly prosecuted by the federal system. . . .

If your son Caleb was shot in the head, in broad daylight while doing his job you would be horrified, as we were! . . .

Never in our wildest dreams did we think that the Governor of our state, would get on his own bandwagon to protect a career criminal!

You have made a terrible situation much worse for our family! We should have never had to go through all this! He would have been arraigned a long time ago, if it wasn’t for your agenda. Please stop this now! Enough is enough.

Sincerely, Deborah Smith

[M]y involvement in this case is not about Mr. Pleau. It is not about the terrible ordeal of the Main family. And it is not about my personal feelings or opinions. It is about maintaining and protecting the sovereignty and laws of the state I was elected to govern.

Lincoln D. Chafee, . . . Governor of Rhode Island

 

87_111

A Matter of Life, Death, and Children: The Patient Protection And Affordable Care Act Section 2302 and a Shifting Legal Paradigm – Note by Ryan A. Walsh

From Volume 86, Number 5 (July 2013)
DOWNLOAD PDF

Nick Snow was diagnosed with neuroblastoma, a rare and deadly form of cancer, at the age of six. After undergoing “chemotherapies, surgeries, four types of radiation, a bone marrow transplant and many experimental therapies,” Nick saw his cancer finally go into remission six years after diagnosis. Twice during this grueling ordeal, doctors told Nick that he would soon die and enrolled him in a hospice program. Unexpectedly, Nick’s general health improved during hospice treatment, enabling him to resume the fight against his cancer. Under then-existing federal laws, Nick’s improved health and decision to seek a long-term cure simultaneously rendered him ineligible for hospice services. As this Note discusses and as Nick Snow explained in his own words, this legally mandated result is unsatisfactory.

 

86_1119