Texas A&M Law Review最新文献

{"title":"The \"Uncanny Valley\" and the Verisimilitude of Sexual Offenders--Part I","authors":"M. Flannery","doi":"10.37419/LR.V6.I3.1","DOIUrl":"https://doi.org/10.37419/LR.V6.I3.1","url":null,"abstract":"This Article is the first in a series of three articles in which I explain the cycle of misperception of sexual offenders that has encouraged the unconstitutional application of sexual offender laws, including civil commitment laws, in a false effort to quell public fear, protect children, and reduce sexual victimization. In this first Article of the series, I propose that this cycle of misperception and the resistance to the release of civilly committed sexual offenders may be, in part, the product of a novel phenomenon known as the “uncanny valley” effect.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122807232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reefer Madness","authors":"Zachary Ford","doi":"10.37419/lr.v6.i3.4","DOIUrl":"https://doi.org/10.37419/lr.v6.i3.4","url":null,"abstract":"In the past twenty years, the United States has witnessed over half of its states create marijuana laws that expressly contradict the federal government’s complete ban of the drug. Nine states have completely legalized marijuana for recreational use in the past five years alone. Meanwhile, much of the country remains staunchly opposed to legalization in any form. This difference between state and federal law has the largest negative impact on noncitizens, namely lawful permanent residents whom reside in states that follow the federal government’s complete ban. Congress’s Immigration and Nationality Act broadly defines “conviction,” so even minor drug convictions under the Controlled Substances Act—like simple possession of marijuana—render lawful permanent residents deportable.\u0000\u0000This problem is a constitutional violation because lawful permanent residents found possessing marijuana in a legal-regime state suffer no consequences; whereas one found possessing marijuana in an illegal-regime state is arrested and immediately taken to an immigration detention center to await potential deportation. This disparate treatment results from a sole difference between the two noncitizens: their geographic location. Thus, the federal government’s failure to uniformly enforce its marijuana laws constitutes a violation of lawful permanent residents’ Fourteenth Amendment right to equal protection. Although Congress has traditionally been afforded great deference when constructing the country’s immigration laws under the plenary power doctrine, such a disparate result supports the argument that the government’s failure to act has no rational basis in its own laws, which demands action.\u0000\u0000This Comment argues that the federal government is depriving lawful permanent residents of their Fourteenth Amendment constitutional right to equal protection by refusing to uniformly enforce its marijuana laws. Thus, lawful permanent residents experience disparate treatment and face potential deportation based solely on their geographic location.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123098495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Billion Dollar Orphans","authors":"John-Paul Sheridan","doi":"10.37419/lr.v6.i3.6","DOIUrl":"https://doi.org/10.37419/lr.v6.i3.6","url":null,"abstract":"This Comment examines the extent to which Congress empowered the FDA to address the increase in petitions and the general accessibility of orphan drug remedies. Specifically, this Comment seeks to understand why the FDA’s interpretation of the purpose of the ODA seems to conflict with the statutory intent as interpreted by federal courts. This Comment considers a statute’s ultimate goal or social purpose to be the purpose of the statute, whereas the express mechanisms by which Congress seeks to bring about these goals is best understood as the statute’s intent. To understand the FDA and judiciary’s differing interpretations of the ODA, this Comment analyzes the language of the Statute, recent ODA litigation, FDA’s promulgated regulations, as well as recent response to pharmaceutical companies’ increase in designation requests for orphan drugs.\u0000\u0000Ultimately, this Comment strives to determine whether or not the ODA can effectively achieve the goals Congress set forth in 1983.This Comment conducts a statutory analysis of the ODA and closely examines how courts, the FDA, and litigant pharmaceutical companies interpret the Statute differently. This Comment argues that Congress’s intent in passing the ODA was to create lucrative incentives for the development of drugs for orphan diseases. But, Congress’s purpose in drafting the ODA was to ensure the drugs became available to patients. The incentives serve as a tool to achieve the purpose of the ODA: to treat patients suffering from rare diseases.This Comment concludes that to better effectuate this purpose, Congress must amend the ODA or pass other legislation empowering the FDA to promulgate regulations that alter the schedule and administration of the ODA’s lucrative “basket of goodies.”","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124934712","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Robots are Coming","authors":"Megan E. Cloud","doi":"10.37419/lr.v6.i3.5","DOIUrl":"https://doi.org/10.37419/lr.v6.i3.5","url":null,"abstract":"New technology frequently emerges that challenges the legal status quo. Early adopters must then grapple with uncertainty over how the law will apply to novel legal quandaries. There is no better example of this than in medicine; however, the health care field is notoriously risk averse. Despite this, the practice of medicine stands to gain tremendously from these technological advancements. One such advancement is the relatively new ability to perform robotic surgery in which the surgeon is remote from the patient. Widespread use of this technology would improve rural access to surgical care, as well as improve access to more advanced surgical techniques. But problems may arise concerning choice-of-law when the laws of jurisdictions that the patient and surgeon are located in conflict. This Comment will explore the choice-of-law dilemma using Texas as a point of reference to discuss the likely choice-of-law analysis that would take place in a telesurgical malpractice case.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133616849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Building a Better Bar Exam","authors":"Marsha Griggs","doi":"10.37419/LR.V7.I1.1","DOIUrl":"https://doi.org/10.37419/LR.V7.I1.1","url":null,"abstract":"In the wake of declining bar passage numbers and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, thirty-six U.S. jurisdictions have adopted the UBE. I predict that in a few years’ time, the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam is no longer the question. Now that the UBE has firmly taken root, the question to be answered is: “What can be done to make sure that the UBE does less harm than good?”\u0000\u0000This Article will, in four parts, examine the meteoric rise and spread of the UBE and the potential costs of its quick adoption. Part I will survey the gradual move away from state law exams to the jurisdictionally neutral UBE. Part II will identify correlations between recent changes to the multistate exams and a stark national decline in bar passage rates. Part III will address the limitations of the UBE, including the misleading promise of score portability and the consequences of forum shopping. Part IV will propose additional measures that can coexist with the UBE to counterbalance its limitations to make a better bar exam for law graduates and the clients they will serve.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130720824","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Taking Stock of the Benefit Corporation","authors":"Ronald J. Colombo","doi":"10.37419/LR.V7.I1.2","DOIUrl":"https://doi.org/10.37419/LR.V7.I1.2","url":null,"abstract":"Almost a decade ago, the “benefit corporation” first appeared on American soil. Its supporters proclaimed that this would usher in a new era of corporate social responsibility. Its detractors complained that the benefit corporation would facilitate managerial abuses that corporate law had worked so hard to curb. After nearly ten years of experience with the benefit corporation, who was the more accurate prognosticator? Moreover, has the benefit corporation given rise to developments, whether beneficial or negative, that were not expected or foreseen?\u0000\u0000This Article traces the history of the benefit corporation, with a focus on the promise that its early supporters identified with it. It also examines the criticisms that this new form of business organization provoked. The Article concludes that, contrary to the predictions of both camps, the benefit corporation has not, apparently, resulted in much change at all.\u0000\u0000In its final Section, the Article explores the reasons why the benefit corporation has had, thus far at least, such minimal impact on the course of American business and corporate law. The conclusion reached is that, for good or for ill, benefit corporation statutes do not materially change the rules of corporate governance. Rather, they simply explicitly permit benefit corporations to conduct themselves according to standards of conduct that traditional corporate law statutes already implicitly permit. Although the promoters of benefit corporation legislation have argued that even this minor change would have an impact on businesses by effecting a normative shift in corporate decision-making, contemporary market forces appear to have had the same result on a far broader scale.\u0000\u0000Lastly, this Article considers some of the unexpected repercussions of the benefit corporation, whether manifested or growing in potential.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116287828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Promoting Equality Through Empirical Desert","authors":"I. Rudyak","doi":"10.37419/LR.V7.I1.5","DOIUrl":"https://doi.org/10.37419/LR.V7.I1.5","url":null,"abstract":"According to empirical desert theory, good utilitarian grounds exist for distributing criminal punishment pursuant to the (retributive) intuitions of the lay community on criminal liability. This theory’s insights, based on original empirical research and informed by social science, have significantly influenced contemporary criminal law theory. Yet, ostensibly, the theory is hampered by serious limitations, which may have obstructed its progress and its potential to guide criminal justice reform. Chief among them: it draws from community intuitions, and community intuitions—as the theory acknowledges—are sometimes immoral. In addition to these “immorality objections,” (commonly illustrated by alluding to the antebellum South and Nazi Germany), critics have alleged, inter alia, that the theory is self-defeating, uses incongruous justifications, and engages in deceptive and exploitative practices.\u0000\u0000This Article argues that these critiques are misplaced and overstated and that empirical desert theory can be safely relied on in criminal justice—and beyond. Despite the captivating historical illustrations and the intuitive appeal of immorality objections, this Article demonstrates that empirical desert theory is nearly immune to them, by virtue of previously underappreciated features of its scientific methodology. Moreover, empirical desert theory can do even better.\u0000\u0000This Article presents an innovative proposal to reconceptualize empirical desert theory by incorporating into its scientific methodology a minimalistic normative commitment to equality and non-discrimination. It provides theoretical support and specific parameters for this reconceptualization, which imbues the theory with qualities capable of further safeguarding it from immorality objections. Furthermore, the Article explores ten additional criticisms of the theory, seriatim, and demonstrates that the proposed reconceptualization substantially strengthens the theory’s ability to overcome them. In its conclusion, the Article outlines two future paths for the theory’s application beyond criminal law, discussing the possibility to “export” its insights to international humanitarian law and its potential to reframe the interaction between criminal law theory and philosophy.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123839426","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Honoring Innocent Until Proven Guilty","authors":"Stephen Rispoli","doi":"10.37419/LR.V6.ARG.4","DOIUrl":"https://doi.org/10.37419/LR.V6.ARG.4","url":null,"abstract":"Texas’s current prison population consists of far more pretrial detainees than convicted criminals. Despite United States and Texas constitutional protections, the default rule in many jurisdictions, including Texas, detains misdemeanor and non-violent felony defendants unless they can post a monetary bond or get a surety to post the bond for them (“bail bond”) to obtain their release. Most pretrial detainees remain detained due not to their alleged dangerousness, but rather because they simply cannot afford to post bail (or get someone to post it for them). As a result, many pretrial detainees find themselves choosing between hamstringing their financial future or remaining in detention until trial. If Americans are serious about “honoring the presumption of innocence,” we must reform the way that misdemeanor and non-violent felony defendants are treated while awaiting trial. Rather than treat them as guilty and keep them in jail unless they can pay for their release, the standard should be to release them unless there is a very good reason for not doing so. By changing the default option from pretrial detention to pretrial release, many Texas judges will be more pre-disposed to release misdemeanor and non-violent felony defendants on conditions other than the posting of monetary bail. This switch will result in fewer people being detained simply because they cannot afford to be released—which will prevent adverse economic consequences to already disadvantaged citizens. Proposed reform has been discussed for decades. Reforming the bail system in Texas is a current, critical need. This criminal justice issue undermines the public’s faith in our system of justice and detrimentally affects the economic and social status of countless citizens who will ultimately be found not guilty. Doing nothing weakens our overall rule-of-law system and ultimately erodes the foundation upon which our society is built.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"172 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123175780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bloody Hell","authors":"L. Shaw","doi":"10.37419/lr.v6.i2.5","DOIUrl":"https://doi.org/10.37419/lr.v6.i2.5","url":null,"abstract":"For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and pro- vides suggestions for possible legislative solutions.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"75 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114874842","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Beyond The Ethical Boundaries Of Solidarity","authors":"Nili Karako-Eyal","doi":"10.37419/lr.v6.i2.2","DOIUrl":"https://doi.org/10.37419/lr.v6.i2.2","url":null,"abstract":"Mandatory vaccination laws require children to be vaccinated against certain communicable diseases to attend school. These laws also provide exemptions to school vaccination requirements. All states exempt children from vaccination requirements for medical reasons, and most states also provide an exemption for religious and/or other personal reasons. Seven states include an educational component in their religious or philosophical exemption process, requiring that parents receive information regarding the benefits of vaccination and the risks of not being vaccinated. Of these seven states, five require that information regarding the social benefits of vaccination will be provided to parents.\u0000\u0000This type of legislation is part of an overall trend to tighten the vac- cine exemption process, which is reflected in the vaccination laws of an increasing number of states. Tightening the vaccine exemption process through the addition of administrative requirements has been proven to decrease exemption rates. But this is not the focus of this Article. Instead, the Article focuses on one aspect of the educational component of the legislation—educating parents regarding the social benefits of vaccines. The Article explores the nature of the obligation to be educated regarding the social benefits of vaccines and the potential influence of this legislation on parents’ vaccination decision making.\u0000\u0000I claim that this legislation should be conceptualized and under- stood through the concept of solidarity. Following this conclusion, I will explore the potential effects of solidarity legislation on parents’ vaccination behavior. For this purpose, two aspects of the legislation will be addressed. First, I will discuss the language included in these laws, which explicitly declare that vaccines have social benefits. I will explore the expressive functions of this language and their potential influence on parental attitudes, beliefs, and behaviors. I will continue by addressing the educational process that this legislation requires. Addressing this aspect of the legislation, I will examine whether providing parents information regarding the social benefits of vaccines through educational encounters is expected to increase their motivation to vaccinate their child.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"79 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125478191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}