Volume 65, Winter 2013, Issue 2

Articles

PRESCRIPTIONS FOR ETHICAL BLINDNESS: IMPROVING ADVOCACY FOR INDIGENT DEFENDANTS IN CRIMINAL CASES
Tigran W. Eldred
The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-­known: severe underfunding, excessive workloads, and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this Article focuses on the psychology of ethical decision making. Relying on research that reveals the subtle ways that self-­interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance. Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.

TAKING RELIGION OUT OF CIVIL DIVORCE
Julia Halloran McLaughlin
This Article is divided into six parts. The first part examines the tension between cultural autonomy and gender equality when members of a Muslim minority population seek to enforce religious awards related to family law matters in civil courts. The second part examines how several countries have dealt with this challenge. The third part examines existing U.S. precedent regarding judicial enforcement of Religious Tribunal Awards (RTAs) related specifically to divorce. The fourth part examines the existing scholarship discussing the legal and policy concerns raised by RTAs. The fifth part examines the constitutional issues a U.S. court confronts when a party seeks to enforce or invalidate a RTA. The final part of this Article proposes a legal framework to address RTAs.

DECONSTRUCTING DETENTION: STRUCTURAL IMPUNITY AND THE NEED FOR AN INTERVENTION
Maunica Sthanki
This Article argues that the U.S. immigration detention system, the largest law enforcement operation in the country, operates with structural impunity resulting in the perpetual abuse of the detained population. There are no enforceable regulations and no accountability mechanisms to protect the nearly thirty thousand individuals held in the Department of Homeland Security’s (“DHS”) custody every day. A culture of abuse and “othering” of immigrant detainees has resulted in numerous reports of dehumanizing physical, sexual, and medical abuse. This structural impunity is exacerbated by the near total privatization of the detention system and corresponding restrictive Supreme Court decisions absolving private-­prison companies of liability. This Article argues that the reform of the New Orleans Police Department in the aftermath of Hurricane Katrina can be used as a model to transform the immigration detention system by providing accountability for abuse and oversight for civil rights violations.

WHY IS PROPERTY SO HARD?
Chad J. Pomeroy
The Article concludes that our property system is dangerously inefficient and costly and that the numerus clausus analysis provides a potentially adequate vehicle for addressing this problem, while acknowledging the very real costs associated with any such attempt.

Notes

AMERICAN WORK-­LIFE BALANCE: OVERCOMING FAMILY RESPONSIBILITIES DISCRIMINATION IN THE WORKPLACE
Katelyn Brack
Although a majority of family responsibilities discrimination claims have been successfully brought under a wide variety of theories, the fact that federal law does not explicitly prohibit employers from discriminating against all types of workers with caregiving responsibilities is disconcerting. Whether by choice, societal shift, or financial necessity, men and women, husbands and wives, and mothers and fathers participate in the workforce while carrying on their family responsibilities. The law must adapt to recent cultural shifts in the American family dynamic.

A CALL FOR FEDERALISM: THE ROLE OF STATE GOVERNMENT IN FEDERALLY CONTROLLED ENERGY MARKETS
Everest Schmidt
Part I of this Note will outline the evolution of government regulation of the electric utility industry in the United States. Part II begins with a brief explanation of how federal wholesale markets work and analyzes the current litigation surrounding New Jersey’s program. Drawing on principles of federalism, Part III concludes with a policy argument contending that states must have the right to unilaterally encourage generation, especially if there is a capacity shortfall that could endanger the safety and welfare of the state.

WIRELESS LIABILITY: LIABILITY CONCERNS FOR OPERATORS OF UNSECURED WIRELESS NETWORKS
Casey G. Watkins
This Note will focus on the liability of the wireless network operator for the wrongful acts committed by others on their unsecured networks. The premise of this Note is that the operator of an unsecured wireless router is not liable for the wrongful acts of third parties committed over his open Internet connection.