Volume 35

Settling for Less? An Analysis of the Use of Settlement Agreements to Mitigate Non-Communicable Diseases

by Kayla Ahmed
There is a pressing need to address the rise of non-communicable diseases worldwide. Non-communicable diseases (NCDs) are the number one cause of death in the United States and account for 71% of all deaths globally. Some of the most common NCDs include heart disease, stroke, cancer, and diabetes. The World Health Organization has identified four […]

Ethical Considerations for Lawyers Engaging in Union-Avoidance Persuasion, Including the Impact of the “Persuader” Rule

by Daphne Assimakopoulos
Law firms and attorneys are intimately tied up in labor-management tensions. Employers and unions alike turn to lawyers to protect themselves from legal liability and vindicate their rights. Amidst a broader public debate around unions and corporate power, it is imperative to examine what lawyers engaging in union avoidance consultations owe to society from an […]

Ethically Ignoring Impeachment Efforts: Historical Case Study of the Politics of the Impeachment Efforts of Justice Douglas

by Brett Bethune
“[A]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a moment in history.” Then-Congressman Gerald Ford spoke these words on the floor of the House of Representatives in 1970 when debating whether the House should impeach Justice William O. Douglas over alleged ethical improprieties and improper judicial […]

How Should Legal Ethics Rules Apply When Artificial Intelligence Assists Pro Se Litigants?

by Brooke K. Brimo
Each year, one out of every six Americans represents himself or herself in court without the assistance of a lawyer. Individuals represent themselves, or litigate pro se,2 for a variety of reasons, including their inability to afford a lawyer, their mistrust or dislike of lawyers, or their desire to advocate for themselves. The justice gap—the […]

Our Collective Misunderstanding: The True Purpose of the Supreme Court

by Molly Connolly
They had a laudable goal: a nation designed so strategically that too much centralized power could never come to be. On parchment paper, the federal structure the Framers proceeded to build seemed like the perfect mechanism for achieving that objective. Even so, the system itself relied upon concepts that exist fundamentally in conflict. The Framers […]

Cash Cow: The Futility of Monetary Sanctions as a Deterrent for Post-Election Litigation Abuse

by Blake W. Cowman
In the two months after losing the 2020 presidential election, then-President Donald Trump and his Republican allies raised a staggering $255.4 million for their “Official Election Defense Fund.” The Trump team used a three-pronged strategy to raise these funds while striving to overturn the election results and bolster the defeated president’s political standing. The first […]

Sentenced to Life Without Parole: The Need to Apply Capital Sentencing Procedures to Current LWOP Sentencing Schemes

by Rachel Demma
While the Constitution guarantees all criminal defendants the right to a jury trial and promises that no life or liberty will be taken without due process, it is silent on the role juries should play in the sentencing scheme. Sentencing power lies almost entirely in the hands of individual judges, granting them broad discretion in […]

If Not Congress, Then Whom? Making the Case for Greater Legislative Oversight of Executive Immigration Policy

by Anashua Dutta
Few issues grab more headlines or heighten more political passions than questions of who among non-U.S. persons may enter, and stay, in this country. Under the Trump administration, these issues came to the fore from the administration’s first week in power, when the President’s first “travel ban” was implemented. The ban, which came on the […]

The Ethical Landmines of Dual Service: United States v. Holmes

by Sabrina Elliott
The legal profession has long debated whether lawyers should be allowed to engage in dual service, or represent corporations and also serve on their boards of directors. In ABA Formal Ethics Opinion 98-410 (Opinion 410) issued in 1998, the Formal Committee on Ethics and Professional Responsibility held that there is no prohibition against lawyers serving […]

No Damage Without Damage Control: The Judiciary’s Refusal to Engage with the Foreign Affairs Docket

by Elliott Fuchs
A governmental body that cannot do damage-control should not be allowed to do damage in the first place. It is a rather intuitive concept, but it is one that the Framers evidently overlooked when they wrote Article III of the Constitution. Every time a court, particularly the Supreme Court, renders a decision that impacts foreign […]

Protest Lawyering

by Eliana Geller
A superficial search of the term “lawyers as protestors” suggests that lawyers serve a limited role in protest movements. In this limited view, lawyers may serve as counselors to putative protestors, either preemptively informing protestors of their legal rights or providing pro bono defense services to protestors who have been arrested or otherwise entangled with […]

The Attorney’s Duty to Democracy: Legal Ethics, Attorney Discipline, and the 2020 Election

by Alex Goldstein
American democracy is at a crossroads. According to some historians, the 2020 election and its aftermath have demonstrated that the Republican Party is “clearly an authoritarian party,” no longer committed to the ideals of democracy, free and fair elections, and the peaceful transition of power. The United States was listed as a “backsliding democracy” for […]

Holding Juries Accountable: Assessing the Right to a Competent and Unimpaired Jury in Light of Tanner and Federal Rule of Evidence 606(b)

by Caden A. Grant
In Tanner v. United States, the Supreme Court held that Federal Rule of Evidence 606(b) prohibits the use of juror testimony to impeach a verdict except where an outside influence was brought to bear on the jurors. This holding, while a reasonable interpretation of the text of Rule 606(b), was remarkable given the extent of […]

A Prosecutorial Duty to Seek Non-Custodial Sentencing

by Mason Grow
Mass incarceration, which caused the sharp increase in the American prison population over the last five decades, explains why America today comprises five percent of the world’s population but houses twenty-five percent of the world’s prisoners. This widespread issue has led to many others, including prison overcrowding. American prisons are dramatically overcrowded, with 2,068,000 prisoners […]

Legitimizing the ‘Illegitimate’: How the Supreme Court Can Restore its Legitimacy in the Public Eye

by Mo Kahn
Over the course of the 2020 presidential campaign, particularly after the passing of Justice Ruth Bader Ginsberg, the term “court-packing” became a household phrase and a talking point amongst Republicans and Democrats alike. While Republican senators jumped on the threats of their Democratic counterparts to “pack the court,” Democrats, in turn, charged the Republican controlled […]

The Pierced Privilege: Challenges to How Congress Vitiates the Attorney-Client Privilege

by Rocky Khoshbin
In the summer of 2020, the Supreme Court found itself in uncharted waters. Trump v. Mazars was a dispute over a congressional subpoena for President Trump’s personal financial records. The Court recognized the case as “the first of its kind to reach this Court.”1 The Court’s opinion, delivered by Chief Justice Roberts, chides the legislative […]

Inconceivable: Impossible Consent and Your Internet Service Provider

by Abigail A. Kunkler
When you pick up the paper (or, more likely, pick out a blog post), it tells you that the COVID-19 pandemic changed every aspect of how we relate to one another. This misses the point. The pandemic has not changed everything—but it has aggravated and stressed resource gaps in the United States. One example is […]

Unusual (and Unconstitutional?) Prosecutorial Models and a Recommendation for Reform

by Maryanne Magnier
While there has been a renewed spotlight in recent years on the disturbingly close relationship between prosecutors and law enforcement, there has been very little attention paid to unorthodox prosecutorial models. Even with standard practices, prosecutors and police officers rely on each other heavily for information and access. Without law enforcement, prosecutors would not be […]

An Ethical Obligation to Publish Opinions in Qualified Immunity Case

by Joseph R. Mattis
Qualified immunity has received an increasing amount of attention over the past few years amidst rising calls for reform against misconduct by government officials such as police officers. Qualified immunity provides a shield against damages liability for government officials who violate a person’s constitutional rights as long as those rights were not clearly established at […]

Modern Anti-Capitalist Thought in Corporate Social Responsibility

by Grace Mayes Schieffer
Throughout the last few decades, and particularly after the Global Financial Crisis in 2008, the eyes of the world have been on the corporate sector and the ethical guidelines that it follows, particularly in terms of corporate governance. Corporate governance schemes determine how companies are directed and determine how each board of directors sets the […]

Balancing Private and Public Interests in Historic Preservation: It May Be Constitutional, But Is It Right?

by Camryn McGinnis
Historic preservation, as we know it, began in the eighteenth century as a private movement. Today, historic preservation has transformed into a “publicly supported movement” that encourages the protection and preservation of resources that are of historic significance. These include buildings, landscapes, objects, and other resources that have significance and integrity. To be considered significant, […]

The Office of Legal Counsel’s Client is the President: Why the Model Rules Demand a Secretive Agency Identify its Boss

by Justin Wm. Moyer
When I first talked to Gwen Levi in April 2021, she was scared.  A 75-year-old woman released from prison amid the coronavirus pandemic after serving 16 years for a nonviolent drug offense, Levi could be reincarcerated for the most minor violation of her release conditions. Even if she complied with them, a memo issued in […]

Evaluating Conduct and Behavior Questions as Replacements for Specifc Mental Health Inquiries on Bar Applications: Assessing the ADA Compliance of the New Questions

by Lydia Nagelhout
Most states include questions relating to mental health on their bar applications. In recent years, several states have replaced questions that ask specifically about mental health diagnoses and treatment with questions that inquire broadly into conduct and behavior in an effort to resolve conflicts with the Americans with Disabilities Act (“ADA”). Because mental health status […]

Building an Accessible, Affordable, and High-Quality Legal Education: Developing Objective Criteria to Evaluate the Effectiveness of Regulatory Interventions 

by Madeline O'Brien
The rule of law is foundational in American society, its politics, and its economy. In the face of 21st century challenges, including socioeconomic inequality, deepening political divisions, and the long-term impacts of a global pandemic and climate change, lawyers are needed to protect the interests of different groups, resolve conflicts, and examine changes to the […]

The EU Volunteered to Lead the Vanguard in the Fight Against Climate Change, but Will the WTO Let It?

by Raul Orozco
As the Earth rapidly approaches a tipping point in the fight against climate change, governments are scrambling to create cost-effective and efficient climate-change-fighting policies that may be implemented without violating World Trade Organization (“WTO”) obligations. Of all the governing bodies in the world, the European Union (“EU”) has created the most cost-effective and efficient climate-change-fighting […]

First Amendment and the Rule of Law: Lawyers and Their Duty to Democracy

by Claris Park
Courts have long protected attorneys’ First Amendment rights, although “speech by an attorney is subject to greater regulation than speech by others” and can be limited if it would significantly affect judicial proceedings. Because lawyers are obligated to be zealous advocates for their clients, they may brush against and test that limit. This can happen […]

Covered? Insurance Viability in the New Space Age

by Josh Raizner
In 1965, Lloyd’s of London created the first satellite insurance policy. By 2040, estimates show the commercial space industry will be a trillion-dollar business. Regulatory support, commercial innovators, a small pool of insurers—each play a crucial role in maintaining and encouraging growth in the commercial space industry. An emerging concern within each sector is the […]

“Vaulting into the End Zone”: How Lessons from the Senate’s USA Gymnastics Investigations Can Prevent the House from Fumbling its Washington Commanders Inquiry

by Stephanie Rigizadeh
Weeks after the United States Women’s Gymnastics Team won silver at the 2020 Tokyo Olympics, decorated medalist Simone Biles sat near the end of a long witness table in the Hart Senate Office Building. Biles, “the greatest gymnast of a generation,” was joined by her teammates and fellow abuse survivors: McKayla Maroney, Maggie Nichols, and […]

The Regulation of Pediatric Naturopathy and Recommendations for Improvement

by Erin P. Ringel
As naturopathy continues to expand in the United States, issues surrounding its availability and safety have arisen. This Note will focus on a subcategory of naturopathic medicine, pediatric naturopathy, and argue that further regulation is necessary in order to protect patients in this field of care. Part I will introduce pediatric naturopathy by discussing the […]

Drawing a Portrait of Confidence: One Resolution to Legitimate Voter Concerns in the Shadow of Illegitimate Violence

by Shane Sanderson
Shortly after being declared the loser of the 2020 Presidential election, Donald Trump submitted a series of challenges to the certification of votes and transition of power. Litigators either representing Trump or closely connected with him alleged that the loss was attributable to election fraud. In support of the fraud narrative, political allies drew in […]

Crime Scene Staging: A Denial of Justice

by Samson D. Su
While mass media makes access to information more attainable than ever before, it also provides equal information access to criminals and can expose investigative techniques via forensic science television programs and publications. As a result, crime scene staging is on the rise due to the phenomena known as the “CSI Effect,” which impose unprecedented challenges […]

Don’t Mind the Gap: Practical and Ethical Consequences of Domestic Planetary Protection Regulations

by Kane Yutaka Tenorio
Planetary protection impacts every human being on the planet. Yet, this practice is often left out of conversations regarding the development of commercial space regulations. While government-affiliated missions operate under updated planetary protection policies, domestic regulations governing corporations and non-governmental organizations have struggled to keep up with the growing private sector. The current “regulatory gap” […]

The Ethical Sports Lawyer: Does Avoiding Conflicts of Interest Mean Avoiding Competition?

by Lise Vitter
A fundamental rule of legal professional responsibility is that lawyers shall not represent a client if such representation involves a conflict of interest. A conflict of interest exists if “the representation of one client will be directly adverse to another client” or “there is a significant risk that the representation of one or more clients […]

How Notions of Professional Independence Constrain Lawyers

by Mikki Weinstein
In November 2020, the D.C. Bar Rules of Professional Conduct Review Committee (“the D.C. Bar Committee”) issued a set of proposed changes to the D.C. Rules of Professional Conduct (“D.C. Rules”). These changes were meant to address client-generated engagement letters and outside counsel guidelines dictating the terms of relationships with counsel. These changes included five […]

Passing the State Bar but Not Your Local Bar? The Effects of Rising Alcohol Consumption on Noncommunicable Diseases and What the Legal Community Can Do to Protect Attorneys

by Jeff Willis
It is no secret that many attorneys experience a significant amount of stress while working the long hours demanded by their respective positions. Complex matters, high-profile clients, and 2,000-hour billable requirements are enough to break down even the most determined attorneys, and adding a global pandemic to the mix has only further exacerbated attorney stress […]

Private Attorney or Public Defender?: Negotiating Plea Deals in an Age of Mass Incarceration

by Nathan Winshall
In an age of mass incarceration, the overwhelming majority of criminal cases end in plea deals. It is thus unsurprising that plea deals are the first decision in the criminal process that the Supreme Court has recognized as requiring the defendants’ ultimate say. Their final decision-making power notwithstanding, defendants are far from the only actors […]