The history of the treatment of mental illness in the United States is anything but simple. While both social and scientific understanding of mental illness have developed tremendously in recent decades, there remain significant barriers to implementing effective treatment and rehabilitation programs for people with mental illness. Inherent in this intersection of law and mental health is the delicate balance between preserving liberty and autonomy interests on the one hand, and providing for individual and societal safety on the other. This balance is not easily achieved and remains the core debate surrounding much of today’s mental health legislation.
A new breed of “app-based” ride-for-hire providers has caused a stir in California, helped rewrite the state’s rules governing ridesharing, and stoked tensions among taxicab drivers, state and local regulators, and the technology companies behind the new apps. UberX, Lyft, and Sidecar are among the most well-known of the new app-based rideshare services, which allow customers to hail a ride using smartphone applications by connecting them with drivers who also use the apps. Critically, the drivers need not be professionals; rather, they merely need to have downloaded a ridesharing app and been cleared by the app provider to drive. For a time, the app-based rideshare companies pointed to these novel aspects of their services to flout regulation entirely. New laws and rules in California, however, provide for the regulation of the nascent industry under a statewide scheme mandating insurance coverage, driver background checks, and other safety-based requirements. In substance, the new rules signal the state’s tacit approval of the development of app-based ridesharing services. Users of these app-based services, which are currently available only in major metropolitan areas like Los Angeles, have been impressed by the apps’ lower prices and perceived higher quality of service.
In March 2014, Gordon Johnston issued an urgent warning to members of Congress: the Food and Drug Administration was “[d]isregarding decades of regulatory stability” by proposing a new regulation that “raises patient safety concerns and threatens the system that created thousands of affordable options for consumers.” Johnston, himself a former deputy director at the FDA, was joined at a press briefing by economist Alex Brill, who estimated that the proposed regulation, if approved, would raise annual U.S. health care costs by $4 billion.
Just what, exactly, was the FDA proposing to do? In the Agency’s words, it sought to “clarify procedures” allowing drug manufacturers “to change . . . product labeling to reflect certain types of newly acquired information.” In plain English, the ultimate consequence of the rule would be explicitly to permit generic drug manufacturers to update their labels with new safety warnings on a temporary basis, pending subsequent agency approval. Under current regulations, brand-name drug manufacturers are already able to update their warning labels in a similar fashion. However, the Agency has taken different positions over the years regarding whether generic drug manufacturers may update their labels. The proposed rule, announced in November 2013, would eliminate the ambiguity by establishing parity between both types of drug manufacturers with respect to label updates.
The definitive agreement in mergers and acquisitions (“M&A”) transactions is one of the most heavily negotiated agreements in the field of commercial contracts. Besides establishing basic terms, such as defining the target and setting the form and amount of consideration, both buyer and seller attempt to allocate risk in order to achieve an acceptable level of deal certainty. Between an agreement’s signing and its closing, weeks, if not months, can pass as the purchaser performs due diligence and the parties obtain the necessary voting and regulatory approvals. In the interim, either the purchaser or the target may have a change of heart or a decline in performance. One way of allocating such risk during this period is through the use of a Material Adverse Change (“MAC”) or Material Adverse Effect (“MAE”) clause. In essence, MAC clauses allow a party to the agreement—most often the purchaser—to walk away free of penalty if the other party experiences an adverse change that is sufficiently material. However, despite the apparent simplicity of such clauses, vague drafting and a dearth of case law have made issues of interpretation exceedingly imprecise and unpredictable.
Claudia, a Mexican American with family roots in the United States since the mid-1800s, walked out of a grocery store, happily chatting with her three young children in Spanish as they walked toward her car. Before arriving at her car, she was stopped by government officials and asked for proof of citizenship. Speaking to the officers in accent-free English, she explained that she is in fact a United States citizen, offering her driver’s license as proof. After rejecting her driver’s license, the officers requested another form of identification as proof that she was in the United States legally. Eventually, Claudia gave the officers something that satisfied them, and they allowed her to continue with her children to her car. After the event, Claudia wondered what she might do in the future to avoid being stereotyped as an “undocumented Mexican.”
On June 25, 2013, as Texas State Senator Wendy Davis prepared to launch her now-famous filibuster, the Supreme Court in Shelby County v. Holder invalidated Section 4 of the Voting Rights Act (“VRA”), a crucial part of one of the most successful civil rights statutes ever enacted. This Note takes these two seemingly unrelated events as its starting and ending points. While the federal filibuster is a familiar procedural device, Davis’s effort shone a light on its underexamined state equivalent. The invalidation of Section 4 of the VRA also turned attention to the states, this time in the form of alarm bells warning of the need for state-level remedial measures to protect voting rights. This Note links those events together by recovering the history of the state filibuster to reveal how it may—and I argue, should—be used to mitigate the impact of Shelby County.
This Note will first review the historical development of gun-control laws in the United States, including those referred to by the Supreme Court as “longstanding prohibitions on the possession of firearms by . . . the mentally ill.” It will then analyze the extent to which the SAFE Act differs from such longstanding prohibitions and whether the Act is constitutional. Finally, this Note will consider whether, regardless of its constitutionality, the SAFE Act is an appropriate legislative response to gun violence or whether a recent proposal by a group of national experts on mental illness and gun violence might be more effective and more likely to pass constitutional muster.
The dialogue on guns in the United States tends to fall toward one of two extremes—“everyday, guns kill good people” or “everyday, guns kill bad people.” The debate becomes a battle of values between two groups with two very different, yet very passionately held worldviews. Even legal scholarship cannot immunize itself from devolving into normative discussions founded on what the law should be, rather than providing analysis of what the law actually is. Unfortunately, a more targeted discussion arising directly out of Second Amendment jurisprudence is particularly difficult, as the U.S. Supreme Court has provided very limited guidance on the types of gun regulations that can pass constitutional muster.
After struggling to provide for her children in her native country of Mexico, Esperanza lost one of her children to starvation. Devastated, she determined to leave her children in the care of family and seek work in Los Angeles. Pursuing what she believed to be a legitimate job offer, Esperanza was instead trafficked into a U.S. sweatshop. Separated from her children and unable to send any earnings home, Esperanza was cruelly abused by her traffickers. She recalls one trafficker asserting: “Dogs have more rights than you in this country. You are here illegally. And nobody can trust you. If you go to the police they might put you in jail because you have no papers . . . and if you do something I will call to the INS and they send you back, and not only send you back, they might put you in jail.”
In 1980, twenty-one-year-old Delma Banks, Jr. was convicted of murdering sixteen-year-old Richard Whitehead outside of Nash, Texas and was sentenced to death for his crime. During the penalty phase of Banks’s trial, the question that would determine whether Banks was eligible for a death sentence was whether a probability existed that he would commit other violent crimes and continue to pose a threat to society if allowed to live. Robert Farr was an essential witness for the prosecution on this point. Farr testified that, before Banks was arrested, Farr had traveled with Banks to Dallas to pick up a pistol that he and Banks needed to commit a series of robberies they were planning. “According to Farr, Banks ‘said he would take care of it’ if ‘there was any trouble during these burglaries.’” On cross-examination, Farr perjured himself twice when asked if he had provided information about the trip to a deputy sheriff, answering that he had not. The state remained silent during this questioning.