Keeping Current – Property Article
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Darryl Wilson, Keeping Current – Property, 38 Probate and Property 12 (2024)Clicking on the button will copy the full recommended citation.
Articles
2023
Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws Article
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Robyn Powell, Legal Ableism: A Systematic Review of State Termination of Parental Rights Laws, 101 Wash. U. L. Rev. 423 (2023)Clicking on the button will copy the full recommended citation.
Although the fundamental right to raise a family is among our most cherished, it is not equally afforded to everyone. Indeed, the United States has an appalling and enduring history of policing parenthood among people with disabilities. In recent years, the rights of parents with disabilities and their children have garnered unprecedented attention from activists, scholars, legal professionals, and policymakers. Nevertheless, the number of disabled parents who have their parental rights terminated is substantial and growing. As such, the roots of these ongoing injustices must be investigated. To that end, because the family policing system, including termination of parental rights, is primarily governed by state statutes, such an interrogation must begin there.
In response, this Article presents findings from a systematic examination of the inclusion of parental disability in state termination of parental rights laws. Strikingly, using established methodological practices from the social sciences, it reveals that parents in forty-two states and the District of Columbia are at risk of having their parental rights terminated because they are disabled. Even worse, as this Article demonstrates, these numbers have remained essentially unchanged for over a decade. Thus, ableism remains entrenched in state termination of parental rights laws. Finally, drawing on the findings from this investigation, this Article considers normative legal and policy solutions for challenging ableist termination of parental rights statutes as well as areas warranting further inquiry. Reckoning with these statutes is essential to finally confront the irreparable harm inflicted on disabled parents and their children by the family policing system.
Unpacking the Revised WOTUS Rule Dialogue Article
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Rebecca L. Kihslinger et al., Unpacking the Revised WOTUS Rule Dialogue, 53 Envtl. L. Reporter 10887 (2023)Clicking on the button will copy the full recommended citation.
On August 29, 2023, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers issued a direct final rule that revised the "waters of the United States" (WOTUS) definition rule. This rule amended the final WOTUS rule, previously published in January 2023, to be consistent with the Supreme Court's May decision in Sackett v. Environmental Protection Agency. On September 14, the Environmental Law Institute hosted a panel of experts to analyze the new rule and discuss its regulatory and policy consequences. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations.
Supreme Court News Article
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 48 Administrative & Regulatory Law News 26 (2023)Clicking on the button will copy the full recommended citation.
Using Consent to Expand Tribal Court Jurisdiction Article
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Grant Christensen, Using Consent to Expand Tribal Court Jurisdiction, 111 Cal. L. Rev. 1831 (2023)Clicking on the button will copy the full recommended citation.
In June of 2022 the Supreme Court reversed two-hundred years of precedent and held in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. Oklahoma v. Castro-Huerta. In conducting the preemption analysis Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The court then reasoned that the lack of a tribal interest could not preempt the state interest. This article suggests, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in 1978’s Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent as well as from recent development by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country.
Keeping Current – Property Article
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Darryl Wilson and Jesudunsin Awoyeye, Keeping Current – Property, 37 Probate and Property 10 (2023)Clicking on the button will copy the full recommended citation.
Waters of the United States: An Urgent Call for Action by Fisheries and Aquatic Science Professionals Article
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Robert M. Hughes et al., Waters of the United States: An Urgent Call for Action by Fisheries and Aquatic Science Professionals, 48 Fisheries Magazine 465 (2023)Clicking on the button will copy the full recommended citation.
The Initial Response of Biodiversity Conventions to the COVID-19 Pandemic Article
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Royal C. Gardner et al., The Initial Response of Biodiversity Conventions to the COVID-19 Pandemic, 48 William and Mary Envtl. L. and Policy Review 1 (2023)Clicking on the button will copy the full recommended citation.
The COVID-19 pandemic disrupted the operations of global biodiversity conventions, requiring virtual meetings in place of in-person events. Yet the pandemic also highlighted the importance of biodiversity conservation as a mechanism to reduce the risk of zoonotic diseases, as the October 2020 report issued by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services ("IPBES") emphasized. Now that in-person, international meetings have resumed, this Article examines the extent to which four biodiversity conventions-the Agreement on the Conservation of African-Eurasian Migratory Waterbirds, the Ramsar Convention, the Convention on International Trade in Endangered Species, and the Convention on Biological Diversity-considered the nexus between biodiversity conservation and human health in the context of zoonotic disease. While the biodiversity conventions have taken several steps, individually, to emphasize the importance of biodiversity conservation to human health, this cross-cutting issue could be used for
greater coordination among the conventions.
Is It Science or Storytime? Expert Testimony Evaluating Child Witness Credibility in Sexual Assault Cases Article
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Elizabeth Ippolito Boals, Is It Science or Storytime? Expert Testimony Evaluating Child Witness Credibility in Sexual Assault Cases, 73 Am. U. L. Rev. 1 (2023)Clicking on the button will copy the full recommended citation.
While jurors struggle with determining any witnesses' credibility, an even more arduous task is determining the credibility of a child victim in a sexual assault case. Due to developmental immaturity, children lack important recall and communication skills, and the well-established procedures of direct and
cross examination are ineffective at producing accurate and complete trial testimony. Despite the adversarial system being proven ineffective in these contexts, American courts remain hesitant to admit expert testimony based on established psychology tools. Specifically, courts have questioned the application of Statement Validity Assessments ("SVAs"), to assist jurors in evaluating witness credibility, as they believe such testimony is unreliable and invades the province of the jury. However, using SVAs to assist jurors in evaluating witness credibility is not a radical or new concept, with inquisitorial and some adversarial criminal justice systems outside the United States using them for decades. These expert witnesses conduct SVAs on child witnesses' pretrial allegations to form an opinion as to the veracity of the witnesses' truthfulness in those statements and testify to the results in court.
This Article discusses the admissibility of expert testimony using SVAs as an aid to jurors in their assessment of child witness credibility in sexual assault
cases in the United States. First, the Article addresses the difficulties jurors have in determining the credibility of witnesses, highlighting the inadequacies of the current adversarial system in producing accurate testimony because of the unique challenges child witnesses present. Second, the Article demystifies the three-step SVA process, detailing the SVA foundational research and routine across the globe. Third, the Article addresses the reliability of the SVA under Federal Rule of Evidence 702 and the Daubert standard. Specifically, this Article advocates that SVA evidence does not deprive the jury of its ultimate determination of credibility but serves as a reliable tool that the jury can use to decipher such challenging types of evidence.
Keeping Current – Property Article
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Darryl Wilson and Jesundusin Awoyeye, Keeping Current – Property, 37 Probate and Property 12 (2023)Clicking on the button will copy the full recommended citation.