Keeping the Elderly Quiet: The Trump Administration and the Reincarnation of Mandatory Arbitration in Nursing Home Contracts

Mandatory arbitration provisions are the current standard in nursing home admission contracts, but the legal arguments surrounding their enforcement raise questions concerning the validity of these standard provisions. Arbitration provisions allow nursing homes to limit the transparency into their operations and keep victims, and their families, quiet and out of the public eye. This, in turn, limits the understanding of the shortcoming of current regulations and where new regulations may help. The current Coronavirus Disease 2019 (“COVID-19”) pandemic has brought to light some of these otherwise hidden regulatory issues surrounding nursing homes. As a result, several states have tried to continue to keep these hidden regulatory issues secret by preventing COVID-19 related lawsuits

Checks and Balances from Abroad

Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on US checks and balances. New national-security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean that far more information is publicly available about intelligence missions. And robust legal rules now bind the United States and other Western intelligence services. These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the executive or the allocation of power among the three branches of the US government. First, some of these foreign influences can trigger the traditional operation of checks and balances in the US system. Second, these foreign actions simulate some of the ef-fects produced by US checks and balances, even if they do not stimulate the US system to act endogenously. Whether one views these foreign constraints as positive or detrimental, understanding them is critical to an informed conversation about the extent to which the executive is truly unfettered in the national-security arena

Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions

National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from any jurisdiction. However, because they were deemed “civil,” collateral consequences have been created and imposed with few constitutional limitations. In recent years, the American Law Institute, American Bar Association, and Uniform Law Commission all have proposed reforms, which are now being seriously considered in a number of jurisdictions. Meanwhile, scholars have advanced, and courts have sometimes accepted, an argument that they previously rejected, namely that collateral consequences can be of constitutional magnitude. As courts take collateral consequences more seriously, legislatures have begun to reduce the numbers of collateral consequences and provide legal mechanisms for the relief of those that remain

The Publication of National Security Information in the Digital Age

From the Introduction: In one of her speeches on Internet freedom, Secretary of State Hillary Rodham Clinton said that “[t]he fact that WikiLeaks used the internet is not the reason we criticized its actions.” Although Clinton is correct that it is essential to separate the technology WikiLeaks uses from its actions, the digital age has raised new concerns about the unauthorized dissemination of sensitive national security information. New technology has made it much easier to leak and otherwise disseminate national security information. At the same time, leaks continue to play an essential role in checking governmental power and often make invaluable contributions to our public debate. WikiLeaks has prompted renewed debate concerning when the disclosure of national security information by nongovernmental actors should be protected, both as a policy matter and as a matter of constitutional law. One dominant theme in the discussion of how to strike the balance between an informed public and the need to protect legitimate national security secrets is whether new media entities like WikiLeaks are part of “the press” and whether Julian Assange and his cohorts are engaging in “journalism.” As the gathering and distribution of news and information becomes more widely dispersed, and the act of informing the public more participatory and collaborative, however, determining who is engaging in journalism and what constitutes the press has become increasingly difficult. It is not possible to draw lines based on the medium of communication, the journalistic background of the publisher, the editing process, the size of the audience, or the methods used to obtain the information. Rather than attempt to define who is a journalist or what is the press, Congress and courts should give careful consideration to the relevant scienter requirements that would apply in cases involving nongovernmental actors. In such cases, the relevant laws should require that the offender acted with a subjective intent to harm the United States or with reckless indifference to any such harm. Such a test provides a means of protecting those who disseminate national security information responsibly and with a good-faith purpose to inform the public debate. This intent requirement would be in addition to proof of imminent and serious harm to U.S. interests

Interstate Recognition of Parent-Child Relationships: The Limits of the State Interests Paradigm and the Role of Due Process

How secure are the legal relationships between gay or lesbian parents and their children when those families move from one state to another? What happens when a non-biological parent who has been legally recognized as a full parent under the laws of one state moves with her same-sex spouse and their child to a different state where public policy is unfriendly toward same-sex relationships? Or what happens when a same-sex couple adopts a child, thus becoming its full legal parents, then seeks recognition of their parental status in a different state? In this Article I argue that the traditional doctrines of conflict of laws, as well as constitutional and statutory full faith and credit -- which I refer to collectively as the state interests paradigm -- will not adequately protect the rights of such non-biological parents, and thus the integrity of gay/lesbian families, but that well-established constitutional due process principles preclude a state from refusing to recognize a legal parent-child relationship that was established earlier in another state. Because the state interests paradigm does not account in any formal way for the individual rights and interests of parents or children, it typically will be too deferential to anti-gay state public policy arguments that may be invoked to deny recognition of a parent-child relationship and thus effectively terminate parental rights without due process. It is well established that the state may not intrude without good cause into established relationships within the nuclear family. Recognizing this principle in litigation over interstate recognition of parental rights would provide a necessary corrective to the state interests paradigm and a check against state interference with extant family relationships

Interstate Recognition of Parent-Child Relationships: The Limits of the State Interests Paradigm and the Role of Due Process

How secure are the legal relationships between gay or lesbian parents and their children when those families move from one state to another? What happens when a non-biological parent who has been legally recognized as a full parent under the laws of one state moves with her same-sex spouse and their child to a different state where public policy is unfriendly toward same-sex relationships? Or what happens when a same-sex couple adopts a child, thus becoming its full legal parents, then seeks recognition of their parental status in a different state? In this Article I argue that the traditional doctrines of conflict of laws, as well as constitutional and statutory full faith and credit -- which I refer to collectively as the state interests paradigm -- will not adequately protect the rights of such non-biological parents, and thus the integrity of gay/lesbian families, but that well-established constitutional due process principles preclude a state from refusing to recognize a legal parent-child relationship that was established earlier in another state. Because the state interests paradigm does not account in any formal way for the individual rights and interests of parents or children, it typically will be too deferential to anti-gay state public policy arguments that may be invoked to deny recognition of a parent-child relationship and thus effectively terminate parental rights without due process. It is well established that the state may not intrude without good cause into established relationships within the nuclear family. Recognizing this principle in litigation over interstate recognition of parental rights would provide a necessary corrective to the state interests paradigm and a check against state interference with extant family relationships