COVID-19 in American Prisons: Solitary Confinement is Not the Solution

2020, Online, Online Volume 2 (2020) COVID-19 Symposium
Nicole B. Godfrey & Laura L. Rovner. As of November 12, 2020, at least 182,593 people incarcerated in American prisons, jails, and detention centers have tested positive for COVID-19; 1,412 incarcerated people have died. As the disease spread rapidly across the country (and world) in March 2020, public and prison health experts warned that jails and prisons could become incubators of the highly infectious disease. Recognizing the risk posed to the nation’s incarcerated population, public health officials issued interim guidance meant to assist prison officials seeking to protect the health and safety of incarcerated people. Simultaneously, prisoners’ rights advocates across the country filed lawsuits seeking to ensure prison systems protect incarcerated people from the risk posed by COVID-19.  In response to these lawsuits and the public health guidance, crowded prison…
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Mental Health and the Aged in the Era of COVID-19

2020, Online, Online Volume 2 (2020) COVID-19 Symposium
Barbara Pfeffer Billauer. Before CoVid felled the planet, the number of new cases of dementia every year tallied at ten million, or one new case every three seconds. Alzeheimer’s disease, the most common form of dementia—which is fatal—affected 10% of Americans over sixty-five, some 4.7 million people. In recent years Alzheimer’s deaths rose 55%, 4 expected to quadruple by 2050. COVID-19 has dramatically exacerbated the situation. “At least 15,000 more Americans . . . died in recent months from Alzheimer’s disease and dementia than otherwise would have . . . .” This is about 18% higher than average. The CDC reported that between mid-March and mid-April, “about 250 extra individuals suffering from some form of dementia were dying each day.” In Wales, excess non-coronavirus related dementia deaths was 54% higher. In England, official figures tallied almost 10,000 unexplained…
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Enabling the Best Interests Factors

2020, Online, Online Volume 2 (2020) COVID-19 Symposium
Adrián E. Alvarez. For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system. Full Article. 
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COVID-19 and Individuals with Developmental Disabilities: Tragic Realities and Cautious Hope

2020, Online, Online Volume 2 (2020) COVID-19 Symposium
Samuel J. Levine.  The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or impressionistic depictions, not infrequently accompanied by rumor and speculation. Perhaps at some point in the future, with the benefit of the passage of time and access to…
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The Case for a Taking: Apple and the Government’s Mandated Law Enforcement Backdoor

2020, Current Issue, Online, Volume 52 (2020) Issue 2 (Summer)
Brian Teed. The holidays had arrived, and on December 2, 2015, San Bernardino County threw a party for its staff. The merriment turned to terror when a man and a woman stormed the building, carving through the attendees in a chaos of bullets. Law enforcement arrived quickly, shooting and killing both attackers, Syed Farook and Tashfeen Malik. The two shooters took fourteen lives and injured twenty-one people. Full Article.
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Doctored Claims

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Stephen Kaneshiro. Home health aide Shu-Ying Xu was injured on the job while trying to keep a patient from falling. The injury caused such debilitating pain the Social Security Administration considered her “totally disabled.” Still, Ms. Xu’s workers’ compensation insurer had her undergo an independent medical examination (“IME”) to review her injury, and sent her to Dr. Wayne Kerness. Dr. Kerness did not ask her any questions, completing the exam in two minutes. His report said Ms. Xu could resume working because her disability was only mild. His report also claimed she spoke English (which she did not), and she took no medications (while she took nine). When confronted by these discrepancies, Dr. Kerness admitted only that he erroneously reported Ms. Xu’s English capabilities and affirmed the rest. Full Article.
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Attorneys’ Fees and the Interpretation of Costs Under Federal Rule of Civil Procedure 41(d)

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Morgan Goodin. Judge Learned Hand’s well-known and widely shared dread of lawsuits emphasizes the importance of the goals of Federal Rule of Civil Procedure 41(d): deterrence of both frivolous lawsuits and forum shopping. Rule 41(d) applies to a plaintiff who previously voluntarily dismissed its suit but chooses to refile against the same defendant based on the same claim. By its terms, Rule 41(d) generally deals with two groups of plaintiffs: the particularly persistent true believer or the wealthy forum-shopper. Full Article.
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The New Insider Trading

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Karen E. Woody. Pursuant to the SEC’s Rule 10b-5, in order to obtain a conviction for insider trading based upon a tipper-tippee theory, the government must prove that the tipper received a personal benefit for the tip, and that the tippee knew about that benefit. The last five years of blockbuster insider trading cases have focused on this seemingly nebulous personal benefit test, and the Supreme Court has been unable to clear the muddy waters. As a result, the parameters of insider trading remain hard to pin down and often shift depending on the facts of the most recent case. Two terms ago, the Supreme Court, in an unsurprising unanimous decision in Salman v. United States, reaffirmed the holding of Dirks, from which the personal benefit test arose. The Court in Salman, however,…
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Domestic Nations in the Age of “Tribalism”

2020, Current Issue, Print, Volume 52 (2020) Issue 2 (Summer)
Hilary C. Tompkins. In today’s world, we are bombarded daily with dueling, political narratives from the left and right of the political spectrum. In my view, the current culture clash is a product of young America’s growing pains, where the painful, destructive origins of America’s founding are catching up with the ethos of “America, the land of the free.” Some Americans desperately want to hang onto the cultural myth that America is one-hundred percent “great” with no shortcomings, while others want to redefine it for the future with an acknowledgement of past mistakes. Political commentators have described this divisiveness as a regression into “tribalism.” Yet ironically, this label of “tribalism” does not include the first domestic Indian nations of this country, nor is there an acknowledgement that the pejorative use of the…
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