THE INEVITABILITY OF DISCRETION: WHAT PROPONENTS OF PARENTING TIME GUIDELINES CAN LEARN FROM THIRTY YEARS OF FEDERAL SENTENCING GUIDELINES

by: Joi Montiel | download this article [PDF]

For decades, the prevailing standard for a judge making a decision regarding parenting time has been “the best interest of the child.” That standard grants substantial discretion to the trial court judge—perhaps more discretion than in any other area of the law. Because the high degree of discretion may render inconsistent and unpredictable results, the standard has been widely criticized.

In the past half century, federal sentencing has undergone similar scrutiny. The Federal Sentencing Guidelines—“the most controversial and disliked sentencing reform initiative in U.S. history”—have substantially curtailed judicial discretion in an effort to achieve uniformity in sentencing. Several states have explored limiting judicial discretion in the area of parenting time by a mechanism appropriate for comparison to the federal sentencing guidelines—parenting time guidelines. Both involve “whole person” adjudication, and both purport to pronounce a result governing an individual’s future based on predetermined classifications and categories. This Article advocates rejection of parenting time guidelines. Instead, modest limitations on the discretion afforded by the best interest standard cannot only address the concerns of its critics but also preserve a judge’s ability to make individualized case-by-case determinations regarding a child’s best interest.

This Article makes its case by applying observations regarding the evolution of federal sentencing guidelines to the concept of parenting time guidelines. The development of the federal sentencing guidelines shows that a guidelines approach to judicial decision-making comes with significant sacrifice, likely to the guidelines’ very purpose. Federal sentencing guidelines came with a sacrifice of the purposes of punish-ment, and parenting time guidelines will come with a sacrifice to the best interest of some children. Every family situation is different, and every child deserves the careful case-by-case deliberation of a judge as to the child’s best interest.

CONSTITUTIONAL RIGHTS FOR NONRESIDENT ALIENS: A DOCTRINAL AND NORMATIVE ARGUMENT

by: Alec Walen, J.D., Ph.D. | download this article [PDF]

The decision in Boumediene v. Bush, 553 U.S. 723 (2008), held that nonresident aliens (NRAs) detained for years in Guantanamo have a constitutional right to bring a habeas petition to challenge their detention. But the larger issue of constitutional rights for NRAs remains unresolved. Do NRAs outside of Guantanamo have constitutional rights? If so, do they enjoy substantial protections, such as those under the Fourth and Fifth Amendments? I argue here that the doctrine remains unclear, that the text is likewise unclear, that originalist arguments should carry little force, but that the normative argument is clear. As a condition of the legitimacy of U.S. law, NRAs must enjoy a range of constitutional rights that protect them from unjust harm at the hands of the United States.

TACTICAL URBANISM V2: DYNAMIC LAND USE REGULATION AND PARTNERSHIP TOOLS REGENERATING FIRST SUBURBS

by: Michael N. Widener | download this article [PDF]

Land use regulation is typically viewed as passive; projects proceed when criteria established under ordinances are satisfied, but are delayed or scuttled when parameters of codes are unmet. Insufficient attention is directed by local governments to the economic ramifications of those events. How should land use regulators perform when their communities are economically deprived—or their employment opportunities have been compromised? The current employment and productivity perils of inner-ring suburbs, those often-dismissed earliest “outskirts” of metropolitan areas, begs the question whether expanding economic opportunities for community citizens should dominate conversations among zoning administrators and their municipal constituents. Too many first suburbs are in decline, their citizens dismayed or angered about their futures. This Article describes how their local land use administrations, partnering with developers and citizens, must refocus on revitalizing inner-ring neighborhoods physically to grow job opportunities, by deploying familiar and novel land use governing and related collaborative strategies. The Article addresses how those controlling planning regimes can catalyze job creation in partnership with the private sector without sacrificing land use’s primary goal to maintain communities as livable and peaceful places. Decision-makers in land use can enhance development quality by adopting and enforcing dynamic development conventions toward a new future for “tactical urbanism.”

NAVIGATING WITHOUT A COMPASS: INCORPORATING BETTER PARENTAL GUIDANCE SYSTEMS INTO THE IDEA’S DISPUTE RESOLUTION PROCESS

by: Joseph Fluehr | download this article [PDF]

Entitling children with disabilities to timely and appropriate special education services has turned out to be easier said than done in the forty years since the passage of the Individuals with Disabilities Education Act (“IDEA”). While parents can avail themselves of both formal and informal processes to resolve disputes with school districts over the appropriate education of their child with disabilities, a power imbalance still exists because of parents’ lack of knowledge. This can make parents’ use of the statutory dispute resolution processes less effective. This problem particularly affects lower-income families in states that have not voluntarily adopted additional alternative dispute resolution processes aimed at parental assistance. Several states have initiated such dispute resolution processes, and have succeeded in reducing the power imbalance between parents and school districts. With increased knowledge of special education and the available dispute resolution processes, parents can more effectively communicate their children’s educational needs and have those needs considered by school districts. In turn, establishing a better path for a collaborative relationship between parents and school districts. One promising step is to provide facilitators during individualized education program meetings, mediations, and resolution session meetings. Additionally, providing more parental assistance can help identify the most appropriate education for the child and potentially reduce costs associated with disputes. Incorporating facilitators and parental assistance hotlines into the IDEA will increase lower-income parents’ ability to effectively advocate for their children and will improve the process of obtaining an appropriate education for children with disabili-ties.

THE ICE-FREE ARCTIC IS COMING: WHY A CIRCUMPOLAR NETWORK OF MARINE PROTECTED AREAS IS NEEDED TO PROTECT ARCTIC FISHERIES FROM CLIMATE CHANGE

by: Angie Lyne Fredrickson | download this article [PDF]

Changes in the Arctic’s climate and corresponding shifts in marine eco-systems are occurring much more quickly than climate models and scien-tists predicted. At the same time, interest in the Central Arctic Ocean for fishing, transportation, tourism, and oil and gas exploration is increasing. An increase in these activities will diminish the capacity of Arctic living marine resources, including fish, to respond to the environmental changes caused by climate change. Because the resiliency of Arctic fisheries will be diminished, and because these fisheries have economic, cultural, and ecolog-ical significance for Arctic nations, there is a need for an Arctic fisheries management framework that is adaptable enough to accommodate the con-siderable degree of uncertainty intrinsic to the rapidly changing Arctic. This Note considers whether existing international law can provide a framework that is sufficiently flexible to respond to rapid, non-linear changes, and sufficiently comprehensive to adequately protect fisheries that are made vulnerable by the direct and indirect effects of climate change. This Note introduces the unique climate change issues facing the Arctic, as well as the existing international legal framework for Arctic fisheries. This Note concludes by suggesting that a fisheries management regime that em-braces a precautionary, ecosystem-based approach through the establish-ment of a circumpolar network of Marine Protected Areas is needed to en-sure the protection of the Arctic’s present and future fisheries in light of the uncertainties that currently plague the region.

NOT EXACTLY THE SAME: AN EXAMINATION OF HOW GENERIC SUBSTITUTION LAWS INADEQUATELY PROTECT CONSUMERS’ NEEDS IF TAKING GENERIC DRUGS RESULTS IN INJURIES

by: Jeffrey  J.  Masters | download this article [PDF]

Every day, millions of Americans take generic prescription drugs, not thinking once about what their legal options would be should taking those drugs result in injuries. Unbeknownst to them, due to very recent developments in the law, in all but a few jurisdictions consumers are totally powerless to recover if they are hurt after taking generic drugs.

Common knowledge dictates that there is no difference between generic and brand-name drugs, and state laws even require pharmacists to fill consumers’ prescriptions with the generic versions of brand-name drugs, absent explicit directions from the physicians to the contrary. While it is true that generic and brand-name drugs are identical in terms of bioequivalence and therapeutic effect, they are not identical in one crucial, but underappreciated, regard: the possibility of recourse if taking generic drugs results in injuries and the consumers want to recover under failure to warn or design defect claims. Starting with a Supreme Court decision in 2011, case law has made it clear that in these situations, neither the generic nor the brand-name manufacturers of the drugs are liable, thus leaving consumers entirely without recourse.

This Note examines the history of the FDA and drug regulation, the federal laws and cases that make up the current regulatory landscape, and state generic substitution laws. This Note then identifies a problem that goes largely undiscussed: because recent Supreme Court decisions have made it so consumers are powerless to recover for injuries sustained after taking generic drugs, which generic substitution laws effectively forced upon them, those laws should change to reflect the needs of consumers. This Note then suggests solutions to this problem, including a call for consumers to petition their legislatures to change generic substitution laws to be more favorable to consumers, and a challenge to the constitutionality of the laws.