Campbell Law Review
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Open Access journal
ISSN (Print) 0198-8174
Published by Campbell University [1 journal]
- United States v. Bryant, Federal Habitual Offender Laws, and the Rights of
Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists
Authors: Monique Kreisman
Abstract: “If you cannot afford an attorney, one will be appointed for you.” Since Miranda v. Arizona, that popularized phrase has widely been regarded as true in the United States. However, because the Bill of Rights does not apply to Native American tribes, defendants in tribal courts are regularly sentenced to imprisonment without the aid of counsel. One of those defendants was Michael Bryant, who has several convictions for domestic assault and was not appointed counsel even though he was indigent and imprisoned.Domestic assault is a terrible problem in Native American communities. Native American women suffer from domestic violence at higher rates than any other racial group. In an effort to reduce domestic violence in the tribes, Congress criminalized domestic assault by a habitual offender. That crime requires two prior convictions, which can be obtained in tribal courts. However, because the Indian Civil Rights Act (ICRA) does not guarantee the same rights as the United States Constitution, a conviction may be valid in tribal court even though it would have been unconstitutional had it been obtained in state or federal court. That conviction may then be used as a predicate offense for domestic assault by a habitual offender.In United States v. Bryant, the Supreme Court held that it is permissible to use uncounseled tribal court convictions as predicate offenses. The Court decided the issue, but a sense of injustice remains. It seems backhanded to use uncounseled tribal convictions to prove an element of a federal offense when those same convictions could not be used if they had been obtained in a different court. This Note proposes three solutions. One solution is to amend the Indian Civil Rights Act to make tribal court defendants’ rights coexistant with state or federal court defendants’ rights. Another is to give tribal courts the authority to impose harsher penalties for domestic assault instead of leaving the federal government as the only court system with the ability to impose adequate penalties. A third proposal is to expand the jurisdiction of tribal courts to allow them to prosecute non-members who commit offenses on tribal lands. Each of these solutions preserves the Court’s reasoning in United States v. Bryant while making the process more just for offenders, victims, and the tribes.
PubDate: Thu, 02 Mar 2017 09:59:57 PST
- Better to Play Dead: Examining North Carolina's Living Probate Law
and Its Potential Effect on Testamentary Disposition
Authors: Kyle Frizzelle
Abstract: On August 11, 2015, North Carolina became the fifth state in the nation to permit a “living probate" proceeding. Like the laws of the four states before it, the new North Carolina law empowers a court to decide the validity of an individual’s will while that individual is still alive. Generally, if the court determines the will is valid, that order is binding. In North Carolina, however, it may not be. In this state, an interested party may challenge a will after the testator has died, even though a court has already found the will valid based on evidence presented by the testator himself. This possibility should not exist. Allowing a post-mortem will contest in this situation destroys the desirability of living probate as an estate planning tool.This Comment first offers a brief overview of living probate in North Carolina before analyzing benefits and concerns commonly associated with the proceeding. After establishing that the advantages of living probate make it a workable option for many individuals, discussion then turns to the effects of North Carolina’s flawed provision. Because allowing a post-mortem will contest of an already validated will effectively renders living probate pointless, the North Carolina General Assembly should remove the provision entirely.
PubDate: Thu, 02 Mar 2017 09:59:54 PST
- The Peering Predator: Drone Technology Leaves Children Unprotected from
Registered Sex Offenders
Authors: Peter N. Borden
Abstract: The increased accessibility of drone technology for private operators frustrates the purpose of existing sex offender legislation. Sex offenders who are intent on committing further unlawful acts may use the vast capabilities of modern drone technology to target children. This Comment explores current restrictions imposed on registered sex offenders and discusses how those restrictions are insufficient to protect children from sex offender recidivism. In order to bridge the gap between sex offender legislation and the rise of private drone use, North Carolina needs new legislation that appropriately limits registered sex offenders from obtaining or using drones for the purpose of harming children.
PubDate: Thu, 02 Mar 2017 09:59:51 PST
- The Next Frontier in Drone Law: Liability for Cybersecurity Negligence and
Data Breaches for UAS Operators
Authors: Joseph J. Vacek
Abstract: While questions related to UAS operations and use in government surveillance have been discussed at length, the legal ramifications of cybersecurity negligence and data breaches for UAS operators have yet to be addressed. In Part I, this article seeks to explore those areas by discussing the UAS data chain. Vulnerabilities in this data chain specific to UAS and in general are explored, followed by an examination of the state of the law related to the collection, use, retention, and dissemination of data. Part I concludes with an overview of current voluntary “Best Practice” documents offering guidance for collecting and managing data. Part II of this article applies Article III standing requirements and third-party liability limitations to the cybersecurity negligence and data breach issues. Existing federal law does not address liability for cybersecurity negligence or data breaches in UAS operations. This, combined with current interpretations of Article III standing requirements and a lack of a required standard of care for UAS operators to protect against cyber attack by third parties, results in the lack of a legal remedy for people whose private data is captured by drone and later compromised in a cybersecurity breach. Thus, it appears UAS operators are effectively shielded from liability for data breaches beyond the UAS operation and in flight data collection.
PubDate: Thu, 02 Mar 2017 09:59:47 PST
- Antitrust Precedent & Anti-Fraternity Sentiment: Revisiting Hamilton
Authors: Jared S. Sunshine
Abstract: Over a decade ago, Prof. Mark Bauer wrote an article exploring the antitrust implications of a small college’s decision to forbid fraternities from competing in the student housing market and the ensuing litigation. Expanding this line of research, several key holdings—despite contrary antitrust doctrine elsewhere—have granted universities broad authority to control the residential choices of their students qua consumers, bespeaking a unique relationship between university and student to which the fraternity is an interloper. These core cases casually allude to the ostensibly defunct doctrine of in loco parentis, under which colleges were once seen as proxy parents to their pupils, implying that in housing matters the paradigm of the custodial university retains the force to overcome competitive concerns. Given both costs and benefits to that view, this Article calls for more judicial scrutiny of the relations amongst colleges, students, and fraternities.
PubDate: Thu, 02 Mar 2017 09:59:44 PST
- The Case for Nonmutual Privity in Vicarious Liability Relationships:
Pushing the Frontiers of the Law of Claim Preclusion
Authors: Glenn S. Koppel
Abstract: This article sheds light on an evolving area of preclusion law—nonmutual claim preclusion and the related issue of privity between parties to a vicarious liability relationship—that merits scholarly attention and greater doctrinal clarity. To illustrate, if an injured party asserts a negligence claim against a truck driver, and judgment is rendered against the injured party based on a finding of the driver’s nonnegligence, may the driver’s employer invoke claim preclusion or issue preclusion in a subsequent action by the injured party? Are the employer and his employee in privity with each other despite the lack of mutuality? When this fact pattern actually became the subject of a sample multiple-choice question published in 2014 by the National Committee of Bar Examiners, several procedural scholars responded that a plausible case could be made for either of two of the four choices—claim preclusion or issue preclusion. Their various responses reveal a need to provide a measure of coherence to this corner of preclusion law.These differing doctrinal views raise three significant issues addressed in this article. First, does claim preclusion bar the suit against the truck driver’s employer or only issue preclusion? Second, if the employer can reap the benefits of claim preclusion, is nonmutual claim preclusion available in the first instance or only as a fallback if issue preclusion is unavailable? Third, to the extent that nonmutual claim preclusion is applicable, is it justified doctrinally as an extension of privity to include employee and employer or as an exception to privity?This Article proposes that adding derivative liability relationships to the recognized categories of substantive legal relationships that “are sometimes collectively referred to as ‘privity’” and applying nonmutual claim preclusion, even where issue preclusion would otherwise have been available, is—and as a matter of policy should be—the next logical step in the evolution of preclusion law. The law of preclusion has evolved progressively beyond the formalist rule of mutuality that traditionally served as the basis for the so-called “narrow and broad exceptions” to the doctrine of collateral estoppel. As a consequence of the erosion of mutuality, a substantial number of American jurisdictions apply those exceptions to claim preclusion by expanding the concept of privity to include vicarious liability relationships.
PubDate: Thu, 02 Mar 2017 09:59:40 PST
- Challenges to Crowdfunding Offering Disclosures: What Grade Will Your
Offering Disclosure Get?
Authors: Zachary James Wilson
Abstract: Crowdfunding is a term used in many different contexts. The conversation surrounding crowdfunding encompasses diverse considerations and interests. In its broadest sense, crowdfunding is a technological fundraising medium for businesses, projects, or charitable causes. Instead of dealing with a financial institution or specific angel investors or venture capital funds, crowdfunded start-ups try to raise money from a worldwide "crowd." Some crowdfunding campaigns solicit donations and pre-orders, such as Kickstarter or Gofundme. Others sell securities. This Comment will only address the rules that apply to crowdfunding campaigns which offer securities.Securities laws have two prime directives. First, companies can only offer and sell securities in a registered offering or in an offering that satisfies the requirements of an exemption from registration. Second, these businesses must not misstate material facts or omit material facts if the omission would make its other disclosures misleading to investors.Primarily, the JOBS Act and other crowdfunding laws focus on the first prime directive. They create exemptions from registration that allow businesses to crowdfund, utilize general solicitation and, in some cases, offer and sell securities to non-accredited investors. These new exemptions present exciting and important changes that democratize the capital raising process by allowing new subsets of businesses to communicate with a broader investor base than ever before.This Comment will briefly discuss these updated exemptions with a particular focus on Title II of the JOBS Act and the related SEC Rule 506(c), as well as Title IV of the JOBS Act and what some call Regulation A+. Both Rule 506 (c) and Regulation A+ are revolutionary because they change who may talk to investors and the technologies that may be used to reach them. The primary focus of this Comment is to discuss these securities laws' requirements for disclosures to investors in light of the brave new world crowdfunding offers. On their face, the updated exemptions change very little about what issuers must say to investors. The disclosure challenges posed by the updated exemptions affect new issuers who have little prior disclosure experience and may have very low compliance budgets. These challenges require such new issuers to comply with traditional securities disclosure rules when they are talking to a less sophisticated crowd of investors than ever before utilizing new technological platforms that are constantly evolving. This Comment discusses how and why an issuer taking advantage of these updated exemptions might inadvertently violate securities disclosure laws when the speaker changes, the audience changes, or the disclosure platform changes, and how to avoid potential traps these changes create when paired with newly available disclosure platforms.
PubDate: Thu, 18 Aug 2016 07:08:56 PDT
- Putting North Carolina Through the PACES: Bringing Intrastate Crowdfunding
to North Carolina Through the NC PACES Act
Authors: C. Marshall Horsman III
Abstract: The nationwide increase in the number of small businesses over the past several years has led to more small businesses, startups, and entrepreneurs seeking capital investments from the general public in order to build and grow their businesses. In an effort to attract investors, businesses have taken an interest in securities crowdfunding, a method for raising capital whereby businesses offer stock in their companies in exchange for capital from investors. While an offering of securities generally must be registered with the United States Securities and Exchange Commission, companies can circumvent the registration requirement by utilizing one of the available exemptions provided by federal statute. This Comment focuses primarily on the intrastate exemption, which allows businesses to sell securities if the offering is wholly contained within a single state, but only if that state has given businesses the option to use that exemption. Since 2011, over half of the states have passed legislation permitting businesses within those states to take advantage of the intrastate exemption. North Carolina, through the NC PACES Act, is considering passing such legislation, yet that bill has been stalled in the North Carolina General Assembly since April of 2015. This Comment highlights the benefits that North Carolina can enjoy by allowing intrastate securities crowdfunding and ultimately calls for the General Assembly to pass the NC PACES Act.
PubDate: Thu, 18 Aug 2016 07:08:52 PDT
- Access to Capital: Rethinking Local Crowdfunding
Authors: James J. Cronin III
Abstract: As a response to recent and possibly premature state action in passing local crowdfunding legislation, this Comment examines why states should exercise care in their choice of language and legislation when amending state securities laws to enable crowdfunding.In order to understand the landscape of crowdfunding as a form of capital formation, it is imperative to understand generally how and why the states have turned to the enactment of legislation in order to aid small businesses in raising capital. Borrowed from the rewards-based model of crowdfunding, made most popular by Kickstarter and Indiegogo, investment crowdfunding is viewed as an innovative measure for raising capital that no longer relies upon the conventional institutions to provide funding for small businesses. These small companies may never elicit the attention necessary to induce investment from institutions most able to provide them with the capital they need, and so investment crowdfunding was born from this need to reach a broad audience, while also encouraging and facilitating investment from any and all who were financially capable of doing so.
PubDate: Thu, 18 Aug 2016 07:08:48 PDT
- Equity Crowdfunding as Economic Development?
Authors: David Groshoff
Abstract: The so-called "JOBS Act" became law in 2012. Part of the JOBS Act was to make obtaining financial capital for the small businessperson or entrepreneur more easily available by making equity crowdfunding permissible under the securities laws and regulations promulgated thereunder. I have defined "crowdfunding" and its different flavors in several prior publications and will not repeat that exercise here. Although the United States Securities and Exchange Commission (SEC) has promulgated regulations regarding some portions of the JOBS Act, and some outsiders believe the SEC's move to clarify rule A+ offerings in 2015 was a positive. This Article, however, reiterates that, until full implementation of the JOBS Act's necessary regulatory environment occurs, penalties will continue to accrue to start-up enterprises, individual investors, and potential employees facing rigged employment numbers that negate those individuals who have simply stopped their respective job searches because of the economic environment.
PubDate: Wed, 17 Aug 2016 13:23:10 PDT
- Strict in the Wrong Places: State Crowdfunding Exemptions' Failure to
Effectively Balance Investor Protection and Capital Raising
Authors: Annalise H. Farris
Abstract: In 2012, Congress passed the Jumpstart Our Business Startups Act, which created an exemption from securities registration for crowdfunded capital raises. Although it was not until May of 2016 that the Securities and Exchange Commission's rules implementing this exemption took effect, many states used the interim period to enact crowdfunding exemptions of their own.Although most of these exemptions aim to increase small businesses' access to capital while still providing adequate investor protection, the exemptions differ greatly in their individual applications. Consequently, a comparison of these exemptions provides a useful analysis of effective regulation in an area of the law new to all players. This Article provides a survey of several state crowdfunding exemptions, focusing on critical characteristics that affect the success of the offering. This Article argues that many of the existing state exemptions fail to effectively help companies raise capital or protect investors against fraud, but instead are overly restrictive in their financial restraints while being too lenient in their investor protection measures. It then suggests a state exemption framework intended to better serve the companies and investors utilizing crowdfunding exemptions.
PubDate: Wed, 17 Aug 2016 13:23:07 PDT
- Symposium Forward
Authors: Benji Jones
PubDate: Wed, 17 Aug 2016 12:53:10 PDT
- The Implications of In Re L.M.T.: A Call to the North Carolina General
Assembly to Reinstate Procedural Safeguards, a Parent's Right to
Appeal, and the Importance of a Permanency Planning Order
Authors: Chelsey Marie Maywalt
Abstract: Jane Smith had finally gotten her life back on track. Jane, a mother of two, had a checkered past of drug addiction and failure to properly care for her children. After a teacher reported suspicion of child neglect to the local Department of Social Services (DSS), DSS began an investigation of Jane and her two children. At the first hearing, the judge adjudicated the children "neglected" and ordered the children be placed in nonsecure custody. While the children were in nonsecure custody, the court and DSS planned to reunite Jane with her two children and maintain the family unit.Eight months later, Jane and her lawyer believed she had made the required reasonable efforts to regain full custody of her children and avoid a cease reunification efforts order. Jane attended drug counseling classes, parenting classes, and sought full-time employment, but the court decided that reunification between Jane and her children was not the best course of action and entered an order ceasing reunification efforts between Jane and her children. The court cited what it found to be a lack of reasonable efforts made by Jane. Jane, trying to regain full custody of her children, filed a motion to appeal the cease reunification order on the grounds that the court lacked sufficient findings of fact to show that reunification between Jane and her children would be futile. Jane believed the deficient cease reunification order meant she could continue on the permanency planning track and eventually regain custody of her children.Following the order to cease reunification efforts and Jane's appeal, DSS motioned for a termination of parental rights. Accordingly, the court entered a termination of parental rights order. The termination of parental rights order completely severed the relationship between Jane and her children.On appeal, the appellate court agreed that the cease reunification order was deficient and did not include the required findings of fact showing reunification efforts would be futile. The court stated that, on its own standing, the cease reunification order incorrectly characterized Jane's reasonable efforts. The appellate court held that Jane's participation in drug counseling classes and parenting classes was proof of her reasonable efforts to regain custody. Despite finding the order deficient, the appellate court upheld the trial court's permanency planning order because the missing findings of fact were provided by the subsequent termination of parental rights order. Relying on In re L.M.T., A.M.T., the court read the subsequent termination of parental rights order in conjunction with the permanency planning order. The holding from L.M.T. allowed a subsequent termination of parental rights order to "cure" a prior, deficient order. Therefore, although Jane had a basis for appealing from the cease reunification order, her appeal was moot when the court later made the required findings in the subsequent, separate order. Thus, Jane lost her appeal and her relationship with her children was forever severed.
PubDate: Mon, 11 Jul 2016 12:34:25 PDT
- Why Aren't You Working? Medlin with Proof of Disability Under North
Carolina Workers' Compensation Act
Authors: Michael F. Roessler
Abstract: Individuals hurt on the job face potential uncertainty about their eligibility for benefits under the North Carolina Workers' Compensation Act. Whereas the state's courts historically interpreted the law as allowing an injured worker to prove loss of wage-earning capacity following a work injury without any regard to overall economic conditions, the North Carolina Supreme Court recently announced the demise of this absolutist rule in Medlin v. Weaver Cooke Construction, LLC and articulated a new rule allowing overall economic conditions to affect an injured worker's claim of disability, at least in some circumstances.The supreme court was wrong to adopt this change, as this Article explains. That said, the North Carolina Court of Appeals and the North Carolina Industrial Commission, the administrative agency charged with administering the workers' compensation laws, are bound by the supreme court's decision. The second purpose of this Article, therefore, is to fill a significant gap left by the supreme court's recent decision by addressing when and how injured workers must concern themselves with the possible effects of overall economic conditions on their post-injury ability to earn wages. These issues went unaddressed by the supreme court in Medlin, and this Article attempts to fill in these details by suggesting a burden-shifting framework to govern adjudication of disputes over whether economic conditions-and not a work injury-are the cause of an individual's loss of wage-earning capacity. This framework is consistent with the supreme court's decision in Medlin, but also prevents the workers' compensation system from becoming unduly hostile to people hurt on the job and in need of help.
PubDate: Mon, 11 Jul 2016 12:08:57 PDT
- Tracking Reasonableness: An Evaluation of North Carolina's Lifetime
Authors: J. Bryan Boyd
Abstract: On the evening of October 4, 1957, one event would change the world forever. With the launch of the first satellite, Sputnik, the whole of civilization was ushered into a new period of technology and discovery. No one who witnessed the birth of the satellite age almost 60 years ago could have envisioned the indispensable impact satellite technology would have in the modern era. One of the most significant benefits of satellite technology has been the use of multiple satellites to determine precise location information from anywhere on the planet. This use, commonly known as GPS (global positioning system), has become so commonplace in our world that a considerable portion of the world population uses it daily. In addition, states capitalized on the use of GPS technology in the mandatory monitoring of sex offenders through the creation of satellite-based monitoring (SBM) programs aimed at the protection of the public by curbing recidivism of known sex offenders. Many legal challenges followed. Then, in the 2012 United States Supreme Court case of United States v. Jones, satellites would again change the world.The Supreme Court, through its Jones decision, would usher in a new paradigm of search law when it held that the warrantless installation and GPS monitoring of a suspect's vehicle constituted a search. The question remained open, however, regarding the effect the Jones decision would have on the GPS monitoring of sex offenders. In the 2015 Supreme Court term, the Court answered this question. In Grady v. North Carolina, the Court ruled that SBM programs constituted a Fourth Amendment search. Despite its ruling, the Court left open the "ultimate question" of whether SBM programs are reasonable warrantless searches. This Article will utilize the framework left by the Grady decision and attempt to answer the "ultimate question" for North Carolina: is the lifetime SBM program reasonable under the Fourth Amendment? The Article will conclude that a court will likely hold that North Carolina's SBM program is a reasonable search. When considering this result, four crucial observations appear:(1) In assessing reasonableness under the Fourth Amendment, the Supreme Court has struggled to consistently maintain a clear direction. Over time, the Court has grappled with whether to require a warrant or to inquire into reasonableness alone. As a result of this dilemma, a number of cases have sprung up to create classifications of warrantless searches that defy a common and consistent theme.(2) The Grady decision's cited cases Vernonia School District 47J v. Acton and Samson v. California provide at least two distinct reasonableness scaffolds to build upon: (1) a "special needs" exception, requiring some need beyond traditional law enforcement; and (2) a general reasonableness exception based upon a particular context, such as a diminished expectation of privacy.(3) While it is likely that the North Carolina courts will conclude that the SBM program is reasonable, such a decision will constitute a Pyrrhic victory, won at the considerable cost to individual privacy. Veritably, if the court upholds lifetime GPS monitoring of individuals as reasonable, such a ruling pushes the outside of the envelope for suspicionless and warrantless searches.(4) Should the High Court eventually consider the "ultimate question" left open in its Grady decision, the resolution is in doubt. In fact, the whole aggregate of its pronouncements on reasonableness, both past and future, has been shrouded in ambiguity. Currently, the Court is ensnared in darkness over the future of its ideological understanding of the Fourth Amendment. Justice Scalia's recent death casts a long shadow over the evenly divided Court. Only time will tell if the Court will attempt to view reasonableness through a preference for warrants or if it chooses to continue to track reasonableness alone in the universe of uncertainty and unpredictability that is the Fourth Amendment. For now, all we can do is look to the heavens and wonder.
PubDate: Mon, 11 Jul 2016 11:55:13 PDT
- Dedication to Professor Patrick K. Hetrick
Authors: James A. McLaughlin Jr.
PubDate: Mon, 11 Jul 2016 11:55:10 PDT
- The FMA and the Constitutional Validity of Magistrate Judges’ Authority
to Accept Felony Guilty Pleas
Authors: Joshua R. Hall
Abstract: Given the burdens of a growing district court caseload and the fact that over 97% of criminal convictions result in guilty pleas, efficiency has necessitated an expanding role for magistrate judges. Within that expanded role lies a greater need for delegation to magistrate judges to assist in the practice of guilty plea acceptance. The Federal Magistrates Act (FMA) permits magistrate judges to take on additional duties so long as they are “not inconsistent with the Constitution and laws of the United States.” Despite the language of the FMA, the Seventh Circuit has been the first circuit to deny district courts the option to delegate the acceptance of plea agreements to magistrates. Therefore, the key question on which this Comment focuses is whether the FMA permits magistrate judges to personally accept guilty pleas. This Comment answers this question through an analysis of the history of the FMA, the relevant case law, as well as a comparative discussion between the Seventh Circuit and its sister circuits. Ultimately, this Comment proposes that the FMA should be read to permit federal magistrates the power to accept guilty pleas, consistent with the jurisprudence of the several circuits and the Constitution.
PubDate: Fri, 22 Apr 2016 09:25:48 PDT
- Out of Bounds: Commerce Clause Protection from State Antitrust Statutes
for Regional Athletic Conferences
Authors: Sean R. Madden
Abstract: Collegiate athletic conferences generate billions of dollars annually. With conferences competing for $300 million plus television contracts, it has become increasingly important that conferences align themselves with the highest quality institutions possible. As a result, individual institutions have shifted from one conference to another with hopes of cashing in on higher revenue opportunities. The regional athletic conferences that govern these individual institutions are different from most commercial actors because their very nature requires that they be regulated on a national/regional level if they are to exist at all. Each member of a conference voluntarily agrees to be bound by the conference’s constitution and by-laws. As such, it is imperative that the by-laws and rules be applied uniformly across the conference in order to have any possibility of functioning effectively.However, subjecting regional athletic conferences to state antitrust laws imposes an excessive burden on the conference without a corresponding local benefit. If regional athletic conferences were subject to state antitrust claims, the member institution’s state with the strictest antitrust laws would effectively regulate the activities of the member institutions in other states. In effect, a conference would be stripped of its ability to freely adopt and enforce its own procedural regulations. To avoid these burdens, regional athletic conferences should be able to seek protection by invoking the dormant side of the Commerce Clause in the face of state antitrust claims. The trajectory of case law on the subject suggests that it is logical that regional athletic conferences should enjoy the protection of the dormant Commerce Clause.
PubDate: Fri, 22 Apr 2016 09:25:41 PDT
- Decoding Eligibility Under the IDEA: Interpretations of “Adversely
Affect Educational Performance”
Authors: Jamie Lynne Thomas
Abstract: The Individuals with Disabilities Education Act (IDEA) strives to provide children with disabilities equal access to free appropriate public education in order to prepare them for further education, employment, and independent living. The determination that a child qualifies as a “child with a disability” under the IDEA is a pivotal one in the child’s life and can drastically impact his/her future. Once found eligible, the child gains access to the spectrum of resources, safeguards, and benefits that the IDEA guarantees. The contours of the key that opens that door should be well-defined and clear. The IDEA standards for eligibility, however, are not. Specifically, one of the statutory requirements for eligibility is that the child must have an enumerated disability that adversely affects his/her educational performance. The terms “adversely affect” and “educational performance” are not specifically defined anywhere in the IDEA or the federal regulations. As a result, authorities are divided regarding what qualifies as educational performance and how adverse an effect must be in order to satisfy this requirement. The resulting inconsistencies have proven problematic. Narrow constructions of these terms by decision makers and state agencies frustrate the inclusive purpose and mission of the IDEA.This Comment calls for clarity and consistency in these terms to the extent appropriate. While a nationally consistent definition of the term “educational performance” is not appropriate since formulation and execution of educational policy has historically been left to state and local authorities, this Comment argues that the IDEA establishes the baseline that “educational” at least includes more than just academics. Beyond that, the specifics should be determined by each state’s curriculum and educational policy. With respect to “adversely affect,” this Comment urges that an inclusive federal definition be adopted that comports with the purpose and goals of the IDEA.
PubDate: Fri, 22 Apr 2016 09:25:35 PDT
- A Reckless Disregard for the Truth? The Constitutional Right to Lie in
Authors: Jason Zenor
Abstract: In the first presidential campaign following the controversial United States Supreme Court decision in Citizens United, much attention was given to the record amount of money spent on the election - close to $3 billion. Ideally, more money spent on campaigning would permit more speech and add to the public discourse, and allowing more speech would encourage and permit bad speech to be countered with good speech. In 2012, however, claims arose that the candidates were being more negative than ever, including resorting to outright deception.Many states have laws on the books that prohibit knowingly false campaign speech on material facts when there is a showing of actual malice, but the impact of these laws is unclear. In 2012, in the midst of the discussion surrounding the negative or untrue campaign speech, the United States Supreme Court quietly denied certiorari to a case that held one such law unconstitutional. That same month, the Court decided Alvarez v. United States, which held that the government could not punish a person for knowingly telling a lie without a showing of actual harm. Ultimately, it seems that the Supreme Court’s actions are the death knell for the remaining false campaign speech statutes. Accordingly, this Article will argue that the Supreme Court needs to reconsider the protection for false speech. The Article forwards a new legal test that parallels the political speech doctrine with the commercial speech doctrine by giving less protection to knowingly false campaign speech.
PubDate: Fri, 22 Apr 2016 09:25:29 PDT