Volume 67, Summer 2015, Issue 4

Volume 67, Summer 2015, Issue 4

Articles

RESPECTING PARENTS’ FUNDAMENTAL RIGHTS IN THE ADOPTION PROCESS: PARENTS CHOOSING PARENTS FOR THEIR CHILDREN

Teri Dobbins Baxter

This Article discusses the fundamental rights of parents under the United States Constitution as recognized by the United States Supreme Court and lower federal and state courts, and addresses how state and federal laws either vindicate or violate those rights in the context of voluntary adoption placements.  Part I examines Supreme Court precedent identifying and exploring the contours of parents’ fundamental right to control the care, custody, and upbringing of their children. Part II analyzes the rights of parents in the adoption context and argues that fit parents who choose to voluntarily terminate their rights and consent to the adoption of their children have a constitutional right to choose who will adopt and raise their children.

Part III examines adoption laws in California and Tennessee as contrasting examples of state adoption law schemes and discusses how the statutory structure in each state succeeds or fails to give due deference to parental choice in determining who may adopt their child. The discussion includes recommendations for changes in the text or implementation of the laws when necessary to protect parents’ rights. Part IV considers how the unique history and status of Native American tribes led to the enactment of the Indian Child Welfare Act and how its language can be interpreted in a way that deprives parents of Indian children of their fundamental constitutional rights. It concludes with a discussion of how the Indian Child Welfare Act should be interpreted and applied to respect the rights of parents while still fulfilling the purpose of the statute and preventing the further destruction of tribes and Native American culture.

THE CREDIBILITY-BASED EVALUATIVE PURPOSE: WHY RULE 703 DISCLOSURES DON’T OFFEND THE CONFRONTATION CLAUSE

Alexander J. Toney

In Part One, this article reviews the development of the Supreme Court’s Confrontation Clause jurisprudence, including an analysis of Williams. In Part Two, this article shows that lower courts are already divided over interpretation of the plurality’s opinion, and reasons that the Supreme Court is likely to revisit the issue as a result. In the same Part, the article examines the Williams plurality’s Targeted Individual Test, and argues that the Test should be rejected by the lower courts. In Part Three, the article considers the Basis Evidence Rationale, explaining the proper purpose for which experts may disclose basis evidence under Rule 703 and arguing that this purpose does not violate the Confrontation Clause. This article also provides a brief analysis of Rule 702, and explains how that rule should inform courts’ readings of Rule 703. The article then describes how Rule 703 disclosures are helpful to juries, in light of the kind of cognitive processing jurors employ in high-complexity cases. Finally, in Part Four, this article identifies three tools to implement the Rationale elucidated in Part Three. This article contends that the last of these tools, the hypothetical question, has the potential to provide common ground for the Court when it revisits the issues presented by Williams. With that future case in mind, the article explains how the use of hypothetical questions can alleviate the concerns of Justices on both sides of the Williams divide.

VEIL-PIERCING’S PROCEDURE

Sam F. Halabi

With the lines between shareholders and corporations blurring over constitutional rights like free exercise of religion and political speech, questions as to how and under what circumstances the law respects or disregards the separation between shareholders and their corporations have never been more urgent. In the corporate law literature, these inquiries have overwhelmingly focused on the doctrine of piercing the corporate veil, a judicial mechanism normally applied to hold shareholders responsible for the obligations of corporations. The last twenty years of veil-piercing scholarship has been largely devoted to empirical analyses of veil-piercing cases collected from Lexis and Westlaw searches. Since 1991, scholars have been trying to mine cases for ever more variables that might predict when and under what circumstances judges disregard the separation between shareholders and their corporations. This Article argues that these scholars have focused on the substance of veil-piercing law to the detriment of another factor: civil procedure. This Article is the first to survey civil procedure and evidentiary rules that affect existing veil-piercing studies including pleading standards, threshold presumptions, burdens of proof, jury access and waiver. The Article ultimately argues that phenomena scholars now ascribe to the “incoherence” of veil-piercing law are explicable in the context of veil-piercing’s procedural fluidity.

Notes

WHO CAN ENFORCE? THE MURKY WORLD OF ROBO-SIGNED MORTGAGES

Matthew J. Petrozziello

In 2008 the subprime mortgage industry imploded, plunging the Western World into the worst economic crisis since the Great Depression. In the aftermath of the mortgage meltdown, large banking institutions have faced a multitude of high-profile lawsuits, scandals, and skepticism about their lending practices. One of the most controversial practices uncovered during the mortgage crisis is “robo-signing,” the use of “fake signatures to power through [mortgage transfer paperwork and] foreclosure documents.” Robo‑signing has been the centerpiece of homeowner lawsuits, criminal prosecutions, and multibillion-dollar settlements. While numerous courts, politicians, and social commentators have addressed the use of improper signatures, little has been said about how such issues could affect the enforceability of the notes and mortgages at issue. This Note will address how robo-signing may impact the enforceability of outstanding mortgage loans. Furthermore, this Note will examine the shortcomings of prior attempts to clarify what robo‑signing means for outstanding mortgage loans and the policy issues inherent in finding a satisfactory solution. The aim of this Note is to suggest a practical, long-term solution that will benefit all stakeholders.

BRINGING DOWN THE HOUSE: AN EXAMINATION OF THE LAW AND POLICY UNDERPINNING THE PROFESSIONAL AND AMATEUR SPORTS PROTECTION ACT OF 1992

James C. W. Goodall

Since the economic downturn stemming from the 2008 Financial Crisis, states have had to be creative about raising revenue to combat rising budget shortfalls. New Jersey attempted such a measure in 2012 by enacting legislation that would permit state-regulated sports wagering at racetracks and Atlantic City casinos. New Jersey’s sports wagering law, however, came into direct conflict with the Professional and Amateur Sports Protection Act of 1992 (“PASPA”). PASPA makes it illegal for forty-six states to authorize, sponsor, or regulate gambling on professional or amateur sports. Not long after New Jersey enacted its sports wagering law, the National Collegiate Athletic Association, Major League Baseball, the National Football League, the National Basketball Association, and the National Hockey League (the “Leagues”) brought suit pursuant to PASPA to permanently enjoin New Jersey’s sports wagering law.

In response to the Leagues’ injunctive action, New Jersey asked the federal judiciary to strike down PASPA as an unconstitutional expression of Congress’s power under: (1) the Commerce Clause; (2) the Tenth Amendment; or (3) the Equal Sovereignty doctrine. While New Jersey has proposed a construction of the Commerce Clause that is not widely held, the State has raised a Tenth Amendment argument for PASPA’s unconstitutionality that calls into question courts’ current understanding and application of the anti-commandeering principle, submitting that a negative prohibition is the functional equivalent of a command to affirmatively act. In addition, New Jersey has raised arguments for PASPA’s unconstitutionality pursuant to the murky Equal Sovereignty doctrine that only recently surfaced in Shelby County v. Holder. However, both the federal district court and the federal circuit court held in favor of the Leagues. Furthermore, in June 2014 the Supreme Court denied New Jersey’s petition for a writ of certiorari, seemingly halting the State’s sports wagering initiative.

While the Supreme Court has declined the opportunity to decide the legality of PASPA, from a policy perspective, hindsight and contemporary circumstances indicate that PASPA has failed to achieve the legislative objectives that inspired its enactment. PASPA has become an impractical barrier to raising revenue that the United States can no longer afford and, accordingly, should be repealed so that states may replace its punitive prohibitions with legislation that better serves their individual needs and interests.

 

 

 

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