Harry Frankfurt drew a distinction that the law has never formally used: a liar knows the truth and asserts its opposite, while a bullshitter is indifferent to the truth altogether, producing assertion calibrated to what will work rather than to what is so. The distinction matters because the two are almost impossible to tell apart from their output alone, and because the law's machinery for detecting deception - intent, knowledge, scienter - is built entirely for the first category and has essentially nothing to say about the second. A professional who files a claim their own evidence already contradicts may have lied. They may equally have never checked, because checking was not necessary to produce a filing that does its job. The document looks the same either way. This paper argues that civil litigation, professional liability, and the institutions that sit above both have organised themselves around exactly this blind spot, and names the structural reason it persists: the Self-Reporting Fallacy. The fallacy is this: every actor positioned to read a legal file has a stake in the answer it gives. A client depends on trusting their own lawyer's account - a client who does not trust it has already, in effect, dismissed their counsel. A lawyer who filed a document is committed to its coherence regardless of who created the gap inside it. An insurer receives a summary of the file, not the file. A court sees what each side chooses to argue, not what either side has chosen not to mention. None of this requires bad faith to operate; it requires only that each actor behave exactly as their position already rewards them for behaving. The result is a system that can prosecute the rare, provable lie but has no mechanism at all for the far more common case - the assertion nobody checked, made by someone with every reason not to check it, sitting undetected in a record that would have shown the gap to anyone reading without a stake in the outcome. This paper specifies what a reading position with no stake in the outcome would need to do differently, building on this author's prior work on the distance between an assigned professional's competence and a matter's actual demands, and on the economics of strategic silence under current legal defaults. It adds a third element, specified here for the first time: a test for whether a filing's own positive factual claims survive contact with its own attachments -- and with what the record conspicuously fails to address -- independent of whether the gap originated in incompetence or in design. Demonstrated against one recurring event -- the moment a professional's own filed evidence contradicts their own asserted position, converting a routine dispute into an independent professional-liability exposure that frequently dwarfs the underlying claim -- the combination shows what becomes visible only once Frankfurt's distinction is taken as seriously in litigation as it has been taken in moral philosophy for forty years: not who is lying, but who has stopped checking, and what that costs everyone still relying on them to have checked. This paper also situates the resulting method against the existing landscape of advocacy ethics, litigation analytics, and legal-AI document review, and argues that none of these literatures, individually mature as each is, was ever positioned to ask the question this paper asks. It closes by naming the category of instrument such a method makes possible, locating the professional-indemnity insurance industry as its natural first market, and offering, as existence proof rather than as its subject, a prototype instrument built by this author that demonstrates the method is achievable with present techniques.
On June 22, 2026, the White House issued Executive Order 14413, directing the federal government to accelerate the deployment of quantum computing and to assess "the implications for the migration to post-quantum cryptography." The order is the latest and loudest signal of a fact the legal system has not yet absorbed: the cryptographic assumptions behind nearly all digital proof carry an expiration date. Every electronic signature, every encrypted database, and every blockchain transaction rests on math that a sufficiently powerful quantum computer can break. When that computer arrives, adversaries will be able to forge the signatures and decrypt the records on which courts, regulators, and markets now rely. Data stolen today is already being warehoused for decryption tomorrow. Signatures trusted today may be forgeable tomorrow. This Article argues that the quantum transition forces the law to confront a distinction it has long been able to ignore: the difference between probabilistic verification (an intermediary's opinion, an AI confidence score, an auditor's judgment) and deterministic verification (a mathematical result that anyone can independently reproduce). Across digital identity, financial services, insurance, defense, supply chains, and digital assets, organizations prove claims through intermediaries whose honesty cannot be checked and whose methods cannot be reproduced. A small set of well-understood cryptographic tools can replace that fragmented apparatus: hardware-secured signing keys, Merkle tree timestamping, post-quantum signature standards, and zero-knowledge proofs. Together they produce verification that is reproducible, tamper-evident, and quantum-resistant from the outset. The Article makes three contributions. First, it reframes the “verification gap” as a legal problem rather than a technical one, showing how the Federal Rules of Evidence, the Daubert reliability standard, data breach liability doctrine, and fiduciary oversight duties each already point toward deterministic proof. Second, it shows that quantum risk is collapsing the legal defenses built on classical cryptography, most visibly the “it was encrypted” defense in breach litigation, while creating new disclosure and diligence obligations for boards. Third, it maps deterministic verification onto concrete applications in six sectors and proposes a regulatory framework, including a “deterministic assurance level” for evidentiary purposes and a public governance process for the rule schemas that translate law into machine-checkable criteria.
Probate stands as a bastion of legal formalism, seemingly resistant to the transformative currents of digital innovation that have swept through other domains of American law. While financial transactions, real property conveyances, and contract execution have increasingly begun exploring the use of Web3 technologies such as blockchain and smart contracts, estate and probate law remain tethered to paper-based procedures and rigid execution requirements. Nevada was the first state to provide legal support for Web3 technology, amending its Uniform Electronic Transactions Act statutes in 2017 to recognize blockchain-based transactions as valid and judicially enforceable. Yet despite this progressive legislative framework, the state’s estate and probate laws remain unchanged. What reforms are required to extend this legal recognition of blockchain to testamentary instruments and probate administration? To explore this, I begin in Part I by examining Nevada’s existing statutory framework for traditional paper wills, electronic wills, and probate administration, identifying where these laws diverge from the state’s more progressive legislation governing blockchain-based transactions. In Part II, I introduce the concept of a blockchain will, explain its technical functionality, and discuss how such instruments can be amended, revoked, or rendered obsolete. I then propose specific legislative reforms that could allow blockchain wills to serve as legally recognized alternatives to traditional paper wills, including the creation of a state-managed blockchain will registry that would provide the procedural infrastructure for securely filing, validating, and preserving blockchain wills. To illustrate how these proposals might operate in practice, hypothetical examples modeling blockchain-based testamentary execution and probate are included. Finally, I analyze the policy considerations both for and against reform, examining the legal barriers that must be addressed and the potential benefits this technology could bring to probate courts.
Multiculturalism has been a substantial part of the U.S. experience and a continued source of tension throughout the country’s existence. From a legal point of view, however, the Anglo-American common law is everywhere the driving force, seemingly leaving limited room for the legal systems of the native populations,1 and even less for the forcefully transported African population, though history proves that these populations had at all times legal awareness and agency.2 While it might seem difficult to describe the U.S. legal system as mixed, its day-to-day, decentralized, bottom-up dynamic interacts with, and draws on, a diversity of endogenous and exogenous cultures. If legal and normative phenomena are considered from the perspective of critical3 or radical pluralism,4 there may be more diversity in the United States than one might expect. The present Report, however, focuses on the State of Louisiana and the Commonwealth of Puerto Rico, both of which qualify as mixed jurisdictions according to mainstream definitions.5 Louisiana is a state in the continental United States. It constitutes the southern portion of a large territory purchased from France in 1803, which, after a short territorial period, became in 1812 the eighteenth state of the Union. The State of Louisiana shares much of its history and culture with other southern states, and its 4.5 million people speak the English language. A Spanish colony for over 400 years, Puerto Rico is a Caribbean island acquired by the United States in 1898. It has a Spanish speaking population of 3.2 million people. Today, the Estado Libre Asociado de Puerto Rico (Associated Free State of Puerto Rico, or the Commonwealth of Puerto Rico) is in a decades long debate as to whether it should become a state of the United States, remain an autonomous territory or become an independent nation. What Louisiana and Puerto Rico have in common is that both have their private law anchored in the civil law tradition, each having a civil code. Louisiana codified its civil law after the Purchase of 1803 (Digest of 1808, Civil Code of 1825, and revised Civil Code of 1870) and engaged in a piecemeal civil-code revision starting in the 1970s. Puerto Rico received the Spanish Civil Code of 1889, which it revised in 1902 and again in 1930, replacing it with a new code in 2020. Regarding their multicultural populations and mixed legal systems, these two jurisdictions have many singularities that justifies that they be discussed in different sections. Louisiana is better known for its Creole culture than for its law.6 As the cradle of jazz, blues, and zydeco music, it is a land of linguistic and cultural diversity resisting the steamroller of a North American model that tends towards uniformity. In this respect, gumbo is an emblematic metaphor of multiculturalism and legal pluralism in Louisiana. It is a beloved local dish that combines a mixture of African, North American, Caribbean, Spanish, and French flavors, where ingredients contribute a unique flavor, while most of them keep their physical identity. A roux is prepared by heating canola oil and flour over medium heat and mixing it well until it reaches a chocolate color. Onions, peppers, and celery are added during the heating process, without burning the roux. Slices of sausage, called “andouille” in Louisiana, find their way into the pot. Chicken broth is then slowly poured in, while the pot is brought to a boil. The mix is seasoned with salt, garlic, and cayenne pepper. Pieces of chicken previously sautéed in olive oil are added, alongside okra, a plant found in West Africa, where it is known as (ki)ngombo in the Bantu language, hence the name “gumbo.”7 The mixture must simmer for a good hour. Duck is a common ingredient, though gumbo can also be cooked with seafood, especially shrimp, abundant in Louisiana, without removing the head. There is no need for a mixer or a blender. Gumbo is served over white rice. The solid ingredients remain perceptible to both the eye and the palate, while the mixture has a unique flavor that varies according to the ingredients, with chunks swimming in the dark soup, which remains quite liquid. Gumbo thus comes from West Africa, which, against its will, provided Louisiana with a large portion of its population, who were beaten with a whip that is not used in the kitchen and brutally enslaved by unscrupulous masters eager to enrich themselves from the production of sugar and cotton. Whether cooked by descendants of settlers from Canada, France, or Spain, of African slaves or Acadian deportees, of sauvages créoles,8 or Yankees, or by boat people from Vietnam, the recipe is a symbol of diversity and It the for in and the of until the Louisiana law is to gumbo in the that it combines chunks of the civil law codified in a civil with a and law which are of common law the of this of the to the ingredients of the legal gumbo a of that the civil law a flavor in a common law the culture the civil law of code while the code remains a It be and to that the process, of common law a blender. It the civil law and its a unique Louisiana, state law is of to and legal different legal civil law from and which the and on the one and the common law from which the by the in a on the each other and then to a mixed, or at the of the of and or whether the of for in Acadian The the of French law by the of name to of the a in the of the colony to and the of as It is that the Civil Code of Louisiana, in after the of the colony by the United States, more or less a of the the of French law more than French in North on the were the where the French culture one has the civil while the of the French the has the the civil and one has to keep both the civil law and the French language. The one is the of the territory of Louisiana purchased by the United States from France in 1803, which became the State of Louisiana in Civil Code and have been in English the Civil comes and then to in and French settlers were by the English in The who to became the of for French is the common law has been it can be both in English and in and is in the French at the de Canada, which became the of by in to remain and has had a Civil Code Code of in Code of tends to the Louisiana Civil Code as a of the of France the it may be as an of a gumbo while its with the that the French from of by de by the to of the of Louisiana to by the of The territory from the of to the by the to the and the to the It should be however, that the in the on in the State of by in The French until the of in in and in and in As a to the and in the system Civil and by a as a of the of of the of The Spanish with the of of the not become until the of in in The and by the and the of by the de the of also the of Louisiana to be by the as the other Spanish The Spanish were more and than the of and the French the the that the legal less than the were during the Spanish period, which a good of Spanish by the population as the colony French the of on Louisiana to France, its The had to remain of that of the Louisiana, which the of the Spanish until the of the of Louisiana by France to the United States in who on 1803, to a system the one that in the other French to or to French on 1803, to the population of the to the United States to to a on 1803, of Louisiana in the name of the United States, received from France a territory Spanish the of Louisiana, the United States the of the and need not be were the of and the hence the of a of with a a and a by the with the to a The of Louisiana the territory of the United a of Louisiana, which to be and and into that become In 1803, the population of the at of which in the of them people of In there were and slaves in Louisiana. The population in of which were in The of the for the territory to for to the as a thus The of and new from and brought and the of the law became the of culture and The Creole in for the of the civil law and the of which in its While the from French to Spanish law in both systems their from and an to Anglo-American common law not be without In to the at it is to point that the the two are not the of the The civil law is a of law in the from the of the of the of the of the which the civil of the and is as a of in in the is to be by the of on the other is a of not on a in the that the The is on the of than on the It is difficult to the their is to the of the of the civil law is in the common law is to a that be without to the of the In the civil law tradition, the is more not the in the of the the who has to the its by the and in with the common law A in the civil law in to in a common law for that a radical in Louisiana not have been or by the legal this is in Louisiana, as an system in after the by the also the of the While both systems the on the civil law the of a by the of the this at common a a The civil law the of of from law with law in after the which the to become the by of the on the of the The common on the other the the of the and the from of the on which It is that in the United States, and the system of of which to a the of the common law other While Louisiana, France and Spain, from law a of the common law on the with from American law in a that on the of In Louisiana the common law the of the civil law that are by the common and a that is limited by a can the of or two after their the by the against In the of common law had the of to the way were and which the of the people that the in at the of the Louisiana Purchase should be to or by the territorial In however, this a The of Louisiana into the United States not without The of the linguistic and legal the other were and of common a that and from the a in of the common law the by to on a to the common a which in a to as the most a of the the of civil law in the The A by the of the the in the two an of the to the of a legal of the civil law is by all and this law is the one which of the population of Louisiana and are to from of which they not themselves without into The to the of the common had no to in to an for legal diversity in a where each state its of to with the U.S. The not a it that it become one in the The of a civil code for the new territory to two both in of an from of French and had received legal in from had to after the their in less than two has it that they the French Civil which had been on the of the of the are that the Code in in Louisiana even while it in at the of the The is that not Louisiana after the also that the Louisiana is not a of the The is not the of to from the Code The Louisiana Code is and and to French law of Spanish as the which a to one of the in Whether the Louisiana Civil Code is French or Spanish remains a in legal It is that the Code its and from many from the French as has it is also that French law and Spanish law were in of the common of and that the Louisiana code on Spanish from the French Code the two were and Spanish that were the Louisiana Civil Code as Spanish in French has the with that on the French to the Spanish which proves that the of the that they in and law the who became an the of the until the of the the French Civil from the as as the of a which by the Louisiana as more to the local of the Louisiana are the of the Louisiana which many more than its French Louisiana at the not and the civil law had to be to and in the common who were of the of the civil law that one of the of were from French legal during the as a part of the population an English hence the The Code into English and in both and its both linguistic on an to the the Louisiana the of the French as the source in the of a the English and the French which to the law by the law that in the of France and the law that in the the of the not to the law of Louisiana to the of the civil law and the of the the of a the law in all by the as the French of the Civil Code had The of the Louisiana Code the law where the new not with the this it at the of to the name than the though the by the French Civil as a radical of and a of civil in to this its to become an of of the without with the The of the of a than a code were the new a to the Spanish for a more and the had to whether or not this by the In the of the had the law as they in the where it that an a not in the a that had not in of the of the of the of law the of to in France, in the of in the civil one to it by for the in Louisiana, and the their and their with the which a source of debate in the less than it had been to The found no better than to in became known as the Civil Code of Louisiana, that of The law for a in the were to that two had to be which were with The Code revised after the Civil in to to and other It in English who were and not to the of the The that one is with a than a code remains an of The Civil Code is a of the legal with other from the common law and other is by from the common The mix or both the Code and the While to the of the common in the to a system to that of the other The a common law also by France during the it into a system with is used in both civil and A by in the and the Spanish Civil codified in of an of civil and common law The in 1812 from the common law flavor, and the civil law by the of the common law system by In Louisiana, the Civil Code to the common law with legal in the Code of Civil The of the Civil Code are and in common law are in in the Louisiana to is found in other Civil which a the civil law and common law the of the with French and Spanish in the of the other endogenous and exogenous should not be even they are to of radical who not at the law from the perspective of the of from the point of of each to a of whether legal or not in the There must be of African the gumbo without themselves The of in or in not their may the way their and their of There is also of the and the who have their and The history of Louisiana law as and by the is to be more of the of the as the and The boat people from who as the of Louisiana contribute to the of while legal It may seem to for legal pluralism in the Civil Code as this is the of the civil law of the Code is to that of law are law and the two of the law in the civil law should be limited to of it not the of Louisiana not seem to a it is that the of the Civil Code room to law by the their their and in that the of and may multiculturalism to the of the legal The of are and the of on by radical though this is in a The Louisiana Code draws from The of the by known as the the of the from Spanish as well as from the French and who much of the French Civil It has been that the of the Code in to the of and the the of and from a mixture of Spanish, and English on the of in and were on as a source everywhere in the United and also in Louisiana. In the Louisiana the Louisiana State with a to the Civil it prepared a piecemeal revision of the by The revision of each is prepared by a of and While most of them the people and their local a have brought to the mix ingredients from the In to the to French and Spanish from the of and or from law can be found in the revision of the law of the of the from and can be in the revision of the law of the of the common law ingredients have also been into the Louisiana common law though of portion and in of remain in the The added on the of or is a more common law its common law the it is of a of the law of the common law are from the of states, in of is in and with which is the of of the French Civil the the of the in the of is in a Civil as the of it that the of a The added are of common law and Louisiana law in with the law of the Civil Code in and in much to the of who to keep the Louisiana for a civil law system in the English language, a civil law than the of the common The Louisiana of the civil code in though the of of the French Civil Code were by the of common law as were the of American in the United States in the alongside other mixed as Africa, and Louisiana has a to the civil law tradition, from the of the common law and its legal this Louisiana also English of of French legal as civil law by and and of and of the French legal in the Louisiana also a in the Louisiana Civil and the Civil Code Louisiana has been the of the French civil law in for two The French to that the American codified their civil law by the model of the As as the French one should not that the Louisiana Civil Code of has been more than a of The Louisiana Civil Code is the of the Spanish civil long in much of and it much in in the not its civil code until 1889, also with an of the Louisiana Civil The of the Louisiana Civil Code as well as the French Civil Code in the in French by and in Spanish by these that other of the as the of the and the Civil Code of The of the Louisiana civil even one in the and even It even the of the civil law tradition, the Code the by of a civil code for the state of civil by the in served as a model for the Civil Louisiana, the United States also received a civil law by way of in the and of the which of the United on of with legal while to In and to be The Civil Code of Louisiana, in English the is again in and in in its The Louisiana not though French remains by over of the state population and is in of While from to a of the cultural and linguistic The French of the Civil Code is on a of the and of the civil law of Louisiana, the to be are of French the the code on two A also and the of Civil is a Spanish which may the Louisiana in as or are and the they the of this legal the of its multicultural Whether it is to the of this Report, though it and in mixed and not mixed The Puerto legal system is a mixed, mixed system with other mixed legal systems the The mixture is to one in and as private Anglo-American as and law and legal and as the of the legal The for the mixture and in history and which to a short of Spanish and U.S. in the Puerto Rico as a Spanish colony in during to the It by and mixture is one and to Puerto Rico as part of the in the of Louisiana and the southern United States, these slaves were and brought to not from a from African were not from their native they were also from their The and especially the and legal from which they not transported to their and in the Caribbean, the or even the of legal as can in the with with and with a long history of legal they were over by As as the local population there are of the native or population, this though and The to local and by as de were and they have an it more in where the population more than in the The legal mixture one in of and is the of the or of and cultural In the Caribbean, until the of and North American and the to a land where they there a The two at times they to local the new were an and not into The into of legal and cultural that in more local not in the Puerto Rico, a a Spanish colony after the of the of its and North American in the decades of the than African which Spanish until the the Puerto Rico, and were the of had a Civil in 1889, to the in and had in a a a land and continental and the of the Puerto Rico a Spanish for a American and in the to a in the United States and in and Puerto the times called in became a U.S. for years, the to in local the to the more over local the United States over has become the U.S. in the of the where are Puerto Rico to the United States by the of of The where a of continued to be a and after from the United States. American in the Caribbean the of the of the which two decades from at the of its A in by the United States, its from and to of as of to become a and its land that continued until the The a debate in the United States the legal of the In the many of the Spanish were into in the United States had to to with Puerto Rico, a speaking territory with legal and The to that not with and of the new A of called the Puerto Rico an one that to had in the of the United States, not have to become a state the nation. The which in the to keep the private in at the of the Spanish U.S. of it in and in to the U.S. the of the new that of and which and the American not have to the legal long in on the a system had and with during as a private in The Spanish Civil and the the and other of private from the Spanish were with to with of from the Louisiana for to the 1902 and American the of and a U.S. which a with then and the as U.S. and and law were from from and and on U.S. Puerto Rico a of and that had been in the American law became that in the United States and in the all two of the American Code had been with English the and law were also as were American were in law which by the had the American model of legal with in the of the American and the American of however, after the Spanish Civil as is by the of Spanish and French and American in were in the a new Civil Code into law in 2020. new code a more from and the new Civil and than from the American one the and of and both on the or of the are by the new code a by the that the of Puerto Rico into the United States as a state in the which the of codified private to the legal were for by the who on called Puerto than tradition, and who American over local which called the As has been it is to the than to describe the be that as it it that as long as Puerto Rico Spanish as its common and American private law in other than with an American and especially as most also and The have been a source of for the of American States, which has a model for and for two have not American have found a source of in that for a more of to be and to keep on they have to for Puerto have to with the legal mixture they have and at in both the Spanish, and the American legal and much as they at is other of the debate are cultural and Spanish language, legal and American to the United States and its on to in and there in which in and land the system and people and and and the in not in a mixed with a mixed even at times it its cultural and legal an and who that should not of the from the that were not The and for their with to and The that and slaves were of the most of law and a in legal on to and their to their and were not of that their or had they were of of by and of them to their and legal awareness to the of and to the of are descendants of the at the of the of the are of or or descendants of the of of or physical are of of their or their at the of the of the is the a A may be by a or should have known that the the other to on it to and the other in may be limited to the or the as a of the on the on a without is not of that to by it to may of and and be by the of who have had a of for of an not for or of or are to a physical or or by the on the or of the
Bitcoin recently turned twelve-years-old. While opinions vary as to its current and future role in the global financial market, it remains the most well-known cryptocurrency and has ushered in a new era of currency. This new era has produced new legal questions and challenges, and government agencies continue to struggle with incorporating cryptocurrency into existing legal and regulatory paradigms. At the same time, blockchain technology, Bitcoin’s foundational technology, continues to find new applications and pose its own challenges beyond cryptocurrency. The military, logistics, and healthcare are only a few examples of the industries that have begun incorporating blockchain technology. Legal practitioners must begin paying more attention to this quickly evolving technology. This article should serve as a cryptocurrency primer for lawyers practicing in the Federal government. It will provide a basic overview of the history of Bitcoin and blockchain technology then discuss blockchain use cases for military interests and criminal law hurdles created by cryptocurrency. It will conclude by outlining important cryptocurrency issues Federal personnel should be aware of.
Part I briefly considers the taxation of bitcoin transactions to give the reader some sense of the constitutional Pandora’s box that was opened by South Dakota v. Wayfair. Part II then delves into one aspect of the Wayfair decision that has broad implications for the future. Specifically, when does technological change justify a departure from the Court's previous Commerce Clause decisions? Part III sketches a possible solution to the problem of horizontal precedent: the application of voting to questions of horizontal precedent, or Bayesian Stare Decisis. Part IV summarizes this proposal and concludes.
When a dangerously mentally ill person is in need of in-patient psychiatric hospitalization, the apparatus for involuntary civil commitment goes into motion. As a result, a mentally ill person can be confined against his or her will, to remain in the hospital indefinitely. The mentally ill person’s freedom depends on the outcome of a single hearing. The civil commitment process raises a number of legal questions: What are the constitutional protections against self-incrimination and the right to remain silent? Who presides over the hearing? Do the rules of evidence apply, specifically hearsay? Is the burden of proof standard by the preponderance of evidence, clear and convincing, or beyond a reasonable doubt? Should the mentally ill person have the right to an independent evaluation of his or her psychiatric condition to contest the view of the hospital psychiatrist? Is the adversarial hearing process best suited to address the need for in-patient hospitalization? Should legal guardians and those designated as power of attorney be given the authority to voluntarily admit a patient into a psychiatric hospital? This Article will explore the current involuntary civil commitment process for confining a mentally ill and dangerous person in a psychiatric hospital. A criminal defendant is often guaranteed greater protections than a mentally ill person facing involuntary civil commitment. As a person’s freedom is at stake, the serious nature of confinement warrants a critical review of how we address the need for psychiatric treatment of our dangerously mentally ill. Part I will examine the government’s power to confine a mentally ill person and the minimum due process safeguards for involuntary admission. Part II will explore the applicability of the constitutional right to remain silent in civil commitment proceedings. Part III will discuss the authority of mental health professionals to testify at the civil commitment hearings and consider issues of privileged communication. Parts IV and V will look at issues pertaining to the rules of evidence, ranging from the burden of proof to hearsay evidence as heard by the hearing judge. Parts VI and VII will analyze respectively the right to an independent psychiatric evaluation and alternative procedures to resolve the determination of the need for hospitalization. Part VIII will address the rights of others to consent to voluntary hospitalization of a mentally ill person, including guardians, persons with power of attorney, and parents of minor persons. Part IX will make recommendations for improving the involuntary civil confinement process. This Article provides an analysis of the current system and practical, concrete suggestions for improving the involuntary civil confinement process through the eyes of the attorney representing the mentally ill client facing involuntary psychiatric hospitalization.
In equal protection jurisprudence, courts adhere to a three-tiered system of review to determine the constitutionality of laws that rely on classifications of people. Strict scrutiny is the most searching inquiry, followed by intermediate scrutiny, and then rational basis. Rational basis review is the default. The two heightened levels of scrutiny apply to only a handful of already-identified groups. As a general principle, courts are deferential to the other branches of government. However, there is a departure to that principle when it comes to individual rights. That is, rational basis review is exceptionally deferential to the government. When individual rights are at stake, courts typically require the government to prove that its action is constitutional in nature and justified in fact. But under rational basis review, courts require the challenger of a law to disprove every conceivable, possible rationale for a law, regardless of whether it was actually a motivating factor behind the legislation. This standard has been interpreted to mean that even if a judge can imagine any reason why a rationale could — even hypothetically — justify a law, then the law stands as constitutional. Often governments do not even assert a rationale for their actions. Rather challengers must disprove even the wildest, most speculative and hypothetical justifications, which could include those introduced by the judge herself.This Article begins by revealing several of the inherent shortcomings of the current rational basis standard. That standard undermines principles of adversarial adjudication, destabilizes other individual rights doctrines, leaves the rights of certain citizens with virtually no protection, and legitimizes discriminatory animus. In effect, rational basis review preserves a discriminatory status quo, meaning that as society’s values evolve, the Equal Protection Clause becomes less capable of protecting those values. Those troubling consequences need not persist. This Article proposes an alternative and improved in standard of review for the least intrusive level of judicial scrutiny in the tiered equal protection framework. This standard, which I call “rationale review,” shifts the burden of proof onto the government to show a reasonable, fact-based justification for laws that classify people. This standard would only marginally increase the burden on governments defending laws that involve classification of people, but it would require those governments to proffer at least an iota of evidence of a constitutionally permissible justification. Rationale review would not dramatically alter the current tiered equal protection framework. Those groups currently afforded heightened scrutiny would continue to receive such a standard of review. And laws concerning all other groups would continue to receive the least intrusive judicial inquiry under the tiered framework. Under rationale review, however, the government would bear the burden of proof in justifying as constitutional — with facts — those laws that make classifications of people.
In 1995, a law professor at the University of Chicago Law School dubbed the Supreme Court confirmation hearings “vapid and hollow” and added that they, as implemented, “serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” Ironically, this same law professor, Elena Kagan, later endured the confirmation hearings as a nominee and currently sits as the 112th Justice of the U.S. Supreme Court. While she may be one of the few to ever reach a seat on the High Court, she is not alone in her assessment of the Supreme Court’s lackluster confirmation process. Other legal scholars have called the process a complete mess and likened it to a circus or a kabuki dance.\nAlthough there are multiple aspects of the confirmation process that could use reform, this Note draws attention to one flaw of the confirmation hearings that many overlook—members of the Senate Judiciary Committee (the “Committee”) use the confirmation hearings as a forum to voice their own political beliefs instead of focusing their undivided attention on the qualifications of the nominee. Since senators do not focus entirely on the nominee, they are not thoroughly examining the nominee’s fitness for the Court. As nationally televised events, it only follows that senators use the confirmation hearings as a medium to speak to theirconstituents. One may ask why this matters or point out that one would expect this of senators; after all, senators constantly have their campaigning caps on, especially when receiving national attention. However, these responses ignore the negative effects of senators placing themselves, rather than the nominees, in the confirmation hearings’ limelight. If the purpose of confirmation hearings is to determine the qualifications of a nominee and ensure that he or she is fit for the Court, then this purpose goes unfulfilled if constituents influence senators’ lines of questioning. Senators consume themselves with how their constituents back home will view their questioning and fail to focus on what is at stake—the confirmation of the nation’s next Supreme Court justice. If the purpose of confirmation hearings is to evaluate the nominee, then this purpose would best be served by having undivided attention focused on the nominee and his or her answers. If senators have an ulterior motive—engaging in an open dialogue with their constituents—then the confirmation process does not effectively serve its primary purpose.\nPart I of this Note investigates the confirmation and appointment power that the Constitution delegates to the Senate. Part II provides a detailed history of the confirmation process and its dramatic evolution over the last century, which is crucial in order to fully comprehend today’s process and its problems. Part III, after examining the media’s role within the confirmation process and the publicity that the confirmation hearings attract, offers proof that senators are cognizant of their national audience and highlights specific examples of senators addressing their constituents via the confirmation hearings. Part IV concludes by setting forth three possible solutions to the overarching problem: implementing anonymous questioning of the nominees through Committee representatives; appointing experts to question the nominees in the senators’ places; and replacing video recording of the hearings with audio recording.
"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because he lived in a fictional world where virtually no one understood the nature and severity of his intellectual disability, and thus people were predisposed to believe that Lennie was a cold-blooded murderer who deserved the ultimate punishment. But how would Lennie fare today--not in Steinbeck's fictional Depression-era America, but in the twenty-first century and in our current criminal justice system? Is the criminal justice system equipped to fairly treat mentally retarded defendants in the quest for "truth"? In this article we have argued for a number of procedural protections to safeguard mentally retarded defendants against the heightened risk of wrongful conviction, i.e., providing counsel or an advocate with training in mental retardation, creating safeguards against the admissibility of false confessions, assuring the reliability of informant and codefendant testimony, informing the jury of the heightened risk of error and altering current burdens of proof. We have elected to sketch several procedural protections rather than defend one or another as the most crucial. For any criminal justice system committed to protecting the Lennies of the world against the heigbtened risk of being found guilty of crimes they did not commit, these procedures are a necessary beginning.
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Criminal Law and Evidence
Occupational and Professional Licensing Regulation
The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can be found in courts' historical treatment of the false-marking statute, the legislative history and policy rationales underlying § 292, and analogous legal contexts. More crucially, the Due Process Clause of the Fifth Amendment mandates a higher burden of proof to protect the important interests at stake for false-marking defendants.
Bankruptcy proceedings tend to involve civil disputes where nothing more than money is at stake. In such instances, the application of the preponderance-of-the-evidence standard of proof offers the greatest utility and is aligned with the comparatively minimal importance society places on purely monetary disputes. However, bankruptcy courts are not viewed as typical civil courts. Rather, many view these courts as “courts of equity” and this perception serves as a crutch which many bankruptcy judges use in advocating the application of the clear-and-convincing standard of proof to customary civil disputes. These actions distort the accepted risk allocation schemes implicit in standards of proof; the consequence of which often is inequitable results. A lack of direction by the Supreme Court is a key factor in this process failure. The Court has addressed the application of standards of proof infrequently and, when it has, the holding has been narrowly tailored. In 1990, the Court issued a ruling in Grogan v. Garner, 498 U.S. 279 (1991), that appeared to provide guidance. Unfortunately, as of late, the ruling has been misinterpreted by a number of courts and has led to additional confusion on an issue that was already elusive. In my article, I propose a new, comprehensive normative approach to determine which standard of proof is applicable in disputes involving debtors in possession under the Bankruptcy Code. My approach is based on a coextensive reading of applicable Supreme Court precedent that honors the narrow basis on which many of these rulings are made. I urge use of an approach that will engender greater uniformity on this fundamental issue. Further, I analyze some key forms of relief available under the Bankruptcy Code in which courts have advocated the application of the clear-and-convincing standard of proof but failed to provide any explanation for this action. By applying my approach, I evaluate bankruptcy case law and isolate instances where bankruptcy courts impermissibly distort accepted risk allocation schemes. Finally, I attempt to show that some unexplained applications of the clear-and-convincing standard of proof are justified.
The first section of this paper discusses the scope and nature of the familial rights at stake in a termination of parental rights action. This section demonstrates that familial rights are defined as relational rights throughout our Anglo American tradition and constitutional jurisprudence and thus protect the relationship between the parent and child rather than an individual right of either. The second section of this paper establishes that life is a which, like culture viewed on any scale, shares learned behavior among members and functions as a means of protecting the group and insuring the continuity of its values, beliefs and organization. This section describes United States Supreme Court decisions which expressly protect the familial activities constituting and reflecting the private culture of the family. In view of the United States Supreme Court's recognitions of private culture, this second section concludes by suggesting that a family's private culture is entitled to the same deference accorded to larger cultural groups in other contexts. Taken together, then, the first and second section stand for the proposition that the proper inquiry is never whether removal from parental custody is in the child's best interest but rather whether a family exists, in the constitutional sense. If a exists, the inquiry must end. There should be no inquiry into whether the child's emotional needs are fully met, whether some future likelihood of harm exists or whether it would be better for the child to spend some time with grandmother, or indeed with anyone else. The state is neither permitted to evaluate the of a functioning nor, as an impersonal political institution is it qualified to do so.The third section of this paper provides a selective overview of termination of parental right statutes focusing on recent trends which have increased the incidence of both procedural and substantive due process problems within the statutes. This third section also describes Congress' own, quite different response to some of the criticism of child welfare legislation, a response which is embodied in the Indian Child Welfare Act (hereinafter ICWA). The third section concludes by proposing a more constitutionally acceptable approach to child welfare legislation utilizing the general principles embodied in the ICWA.The fourth and final section of this paper argues that the appropriate burden of proof to place on state actions to remove a child from his or her parents' custody or to terminate parental rights to the child is proof beyond a reasonable doubt. The ICWA requires proof beyond a reasonable doubt in termination of parental rights actions falling within its jurisdiction; the principles Congress endorsed in enacting the ICWA should be applied to all families. This paper reaches this conclusion despite Santosky v. Kramer's apparently different resolution of the issue of the burden of proof required in parental termination actions.
Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful.\nStates currently have widely varying means of adjudicating child custody disputes between parents and third parties. One Supreme Court case, Troxel v. Granville, addresses contests between parents and third parties. While Troxel ruled for the parent in that particular case, it neither represents a strong parents’ rights opinion nor does it provide states with clear guidance on how to shape third party custody statutes. This Article argues that states should enact child custody statutes according to three primary points. First, due to the wide range of situations in which a third party custody order may be necessary, states should permit a broad set of individuals to seek custody. Concerns that broad standing provisions would lead to a flood of meritless lawsuits are not borne out by actual data in states that have had nearly unlimited standing. Second, recognizing the constitutional primacy of the parent-child relationship, states should hold third parties to a high substantive standard, and require them to prove that parental custody would harm the child in some way. Any lesser standard — such as the best interests of the child standard applied in some states — insufficiently protects relationships between parents and children. Third, recognizing that the core parental right of the “care, custody and control” of a child is at stake, states should generally hold third parties to a clear and convincing burden of proof. Most states apply a preponderance burden or have not specified a burden. One exception should apply: When a third party has acted as a parent for a significant time and a child’s birth parent has not done so, then that parent’s constitutional rights are diminished, society’s interest in maintaining the long-term bond between the child and third party is enhanced, and a lower burden of proof should apply.
This Article explores, and ultimately embraces, a new exception to the complete diversity rule in removal cases: the doctrine of procedural misjoinder. We argue that the doctrine offers federal courts a vital tool with which to police joinder gamesmanship. Absent this power, plaintiffs may preclude defendant access to federal courts by the relatively simple expedient of joining in state court largely unrelated claims against or on behalf of non-diverse parties. The resulting lawsuit thus fails the complete diversity test, rendering such cases removal-proof. Like fraudulent joinder, the long-standing practice of ignoring non-diverse parties against whom no valid claim may be asserted, the doctrine of procedural misjoinder would permit federal courts to disregard any diversity-destroying parties who have been improperly added to the state lawsuit. Because access to federal courts is at stake, we believe federal courts should adopt this new doctrine, applying federal joinder standards to test the legitimacy of plaintiffs’ party alignments before denying removal jurisdiction.
In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the margin of litigation, and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.The bad news from the story of Election 2004 is that things likely won't get better in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administrationSecond, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.
In his decade-long exploration of female sexuality, Sigmund Freud professed to be on a mission to answer the elusive question: What do women want? Unfortunately, the 19th-century psychiatrist was unable to separate that question from the one he ultimately answered: What do men want women to want? In some sense, Freud's inquiries provide an apt metaphor for the medical profession's stance toward female experience. When confronted with the difference presented by the female body as well as women's unique life experiences, the medical field has responded with approaches that range from bemusement to hostility to intense indifference. Although the pernicious effect of gender bias on healthcare delivery is well-known, less attention has been paid to its secondary effects. Disinterest in or hostility to the female experience leads to an informational vacuum that allows for the development of ideas, theories, and assumptions founded on cognitive bias, rationalization, and wishful thinking rather than empirically-based knowledge. These biases, then, are imported into the legal field where they undergird juridical movements that serve to disadvantage women. This essay explores how, in the medical context, the stunted development of knowledge about women, becomes, in the legal context, a dangerous thing. In examining the interplay between medical and social science information and legal dogma, this essay will discuss how bodies of knowledge are selectively pursued, exploited, or ignored in the service of patriarchal assumptions that achieve expression in legal responses to emerging social dilemmas. Selective information flows between the medical and legal professions result in untoward consequences in a wide variety of settings. Here, we limit our focus to two such untoward consequences. The first part of the essay discusses the impoverished medical discourse on female sexuality and how inattention to female sexual fulfillment has led to legal rules that disproportionately affect women's expression as sexual beings. The second part examines available social science data detailing the distinction between psychological and genetic parenthood and shows how that data has been ignored in favor of judicial presumptions that privilege men and disadvantage women in disputes over frozen embryos. A close look at these contested arenas of sexuality and reproduction demonstrates the difficulty of charting women's progress toward equality. On the surface, in both law and medicine, norms of gender equity command facial allegiance. Medicine disavows its earlier efforts to exclude women from the profession, while law proffers the equal protection doctrine as proof that sexist behavior can be rooted out in a zero-tolerance legal culture. Under the waterline, though, unconscious beliefs and stereotypes hold sway. These unruly currents lead to rationalizations and cognitive errors that elude rigorous examination, but affect women at work, at home, and in the bedroom.