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Grant Christensen et al., Tribal Court Litigation, in Recent Developments in Business and Corporate Litigation (American Bar Association, Business Law Section, 2021)Clicking on the button will copy the full recommended citation.
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Walter Hellerstein and Andrew D. Appleby, Platforms: The Postscript, 100 Tax Notes State 1365 (2021)Clicking on the button will copy the full recommended citation.
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Kenneth G. Dau-Schmidt et al., Legal Protection for the Individual Employee (6th ed., West Academic, 2021)Clicking on the button will copy the full recommended citation.
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Darryl Wilson, Keeping Current-Property, 35 Probate and Property 22 (2021)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, The Dichotomy Between Overcriminalization and Underregulation, 70 Am. U. L. Rev. 1061 (2021)Clicking on the button will copy the full recommended citation.
The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability?
Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations; as well as their enforcement procedures—the prosecution of crimes or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: 1) those advocating for increased criminalization and regulation; or, 2) those claiming overcriminalization and overregulation.
This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.
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Robyn Powell and Sasha Albert, Supporting Disabled Parents and Their Families: Perspectives and Recommendations from Parents, Attorneys, and Child Welfare Professionals, 15 Journal of Public Child Welfare 529 (2021)Clicking on the button will copy the full recommended citation.
While it is well-established that parents with disabilities and their families are over-represented in the child welfare system, no known research has described the parents,’ child welfare professionals,’ and attorneys’ perspectives on the system’s capacity to support them or their recommendations for improvement. This qualitative phenomenological study involved semi-structured interviews with 15 disabled parents, 15 child welfare professionals, and 15 parent attorneys. Respondents agreed that the child welfare system lacks expertise on disability and adequate services for disabled parents, and holds negative attitudes about them. Respondents recommended robust training for professionals on parents with disabilities, and individually-tailored services for disabled parents.
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Darryl Wilson, Keeping Current–Property, 35 Probate and Property 20 (2021)Clicking on the button will copy the full recommended citation.
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Christine E. Cerniglia, Creating Legal First Responders: Requiring Service Hours for Admission to the Bar, 14 John Marshall Law Journal 74 (2021)Clicking on the button will copy the full recommended citation.
When Covid-19 created unprecedented medical needs in 2020, the medical profession swiftly responded by creating pathways for medical students to graduate early and become first responders. The medical profession quickly adapted and students asked to enter the profession early in order to serve. As frontline responders to the pandemic, the medical profession cultivated a deeper understanding of their responsibility and integrity to serve the larger community.
Meanwhile, the legal profession wrestled with how to maintain the unnecessary barriers to enter the profession instead of focusing on the unprecedented legal needs created by the pandemic. Decisions to safely administer a bar exam or allow entry through diploma privilege were important concerns but did not focus on the needed legal response for lawyers to address the access to justice gap. The heavy dependence on the National Conference of Bar Examiners became evident as many jurisdictions waited for NCBE's decisions when states could release the standardized exams, while bar applicants were at the mercy of decision-makers and unable to enter the profession.
This article highlights the disruption to bar admissions during the summer of 2020 and advocates that supervised practice and a service requirement is now possible for admission into the profession. The article proposes a 500-hour service requirement for admission to cultivate service leadership and create legal first responders to address the rising legal needs in the community. The supervised practice rules adopted this past summer by thirty-one jurisdictions showcases the ability to implement such a requirement and allow the profession to come together to implement change.
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 46 Administrative & Regulatory Law News 20 (2021)Clicking on the button will copy the full recommended citation.
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Sasha M. Albert et al., Passing State Legislation to Protect the Rights of Parents with Disabilities: Lessons from Interviews with Advocates, Attorneys, and Legislators, 33 Journal of Disability Policy Studies 15 (2021)Clicking on the button will copy the full recommended citation.
Parents with disabilities experience discrimination within the child welfare, family law, and adoption and foster care systems. In response, there have been increasing calls for states to pass legislation prohibiting discrimination against parents with disabilities, and as of 2020, 28 states have passed or are considering such legislation. This qualitative study explored the perspectives of 19 advocates, attorneys, and legislators on barriers and solutions for passing legislation to protect the rights of parents with disabilities. Participants identified three barriers: (a) legislators’ pejorative attitudes toward parents with disabilities, (b) external opposition, and (c) legislative barriers. Participants also identified eight solutions: (a) cross-disability advocacy, (b) education, (c) relationship-building, (d) bipartisanship, (e) support from state and national organizations, (f) strong sponsors, (g) incrementalism, and (h) model legislation. Study findings should help to inform ongoing legislative advocacy to protect the rights of parents with disabilities.