Monday, April 27, 2015

Article Summary: Extramarital Relationships and the Theoretical Rationales for the Joint Property Rules - A New Model, by Yitshak Cohen



Cohen's article examines the impact that extramarital relationships have on property distributions at the time of divorce under the laws of the varying United States as well as Israel, and then using these laws the author proposes a new model accounting for extramarital relationships in property distribution where they are the dominant cause for divorce.

Monday, April 20, 2015

Article Summary - Defending the Guilty: Lawyer Ethics in the Movies

In the Article, Defending the Guilty: Lawyer Ethics in the Movies,[i] author J. Thomas Sullivan takes the reader on a journey through the legal and moral dilemmas faced by a criminal defense attorney when the guilt of his client is known, and the implications of such knowledge, using an interesting twist.[ii] The Article discusses these complicated and intense topics by using various motion pictures with relevant and relating topics within.  The Article first discusses a defense attorney’s obligation to his client and the preserved moral dilemma of representing a client whom is believed to be guilty.  [iii]  Sullivan uses the movie, To Kill a Mockingbird[iv] and the attorney in that film, Atticus Finch, to show that an attorney has a duty to zealously advocate for his client, despite a perceived notion that the client is guilty.[v]  The Article goes on to discuss the differences between moral guilt and legal guilt, and the difficult task for criminal defense attorneys to separate the two in their representation of clients.[vi]  Films like Path of Glory,[vii] Judgment at Nuremberg,[viii] Tom Horn,[ix] Primal Fear,[x] A Reasonable Man,[xi] and The Exorcism of Emily Rose,[xii] are used to demonstrate this conflict and provide relatable examples for readers.[xiii]
The article then moves to considering the previously discussed topics in light of a central pillar in our criminal justice system, that of a criminal defendant’s right to counsel.[xiv]  The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to counsel,[xv]and this right was extended to felony cases in the landmark United States Supreme Court decision of Gideon v. Wainwright.[xvi]  In Defending the Guilty: Lawyer Ethics in the Movies, the importance of the right to be represented by counsel is illustrated by Sullivan’s examination of the film, The Ox-Bow Incident.[xvii]  While the outcome of the “trial” in The Ox-Bow Incident, was not up to the requirements of justice that we are now accustomed, the importance of our current standards was all the more exemplified by the injustice that the three main characters experienced.[xviii] 
After using several films to demonstrate a client’s expectation of effective assistance of counsel, the Article moves to debating the merits of a defense attorney’s knowledge of his client’s culpability.[xix]  The Article discusses both the pros and the cons of a lawyer knowing his client’s guilt, including the ability to argue his innocence, a client’s desire for his attorney to think he is innocence because he believes the attorney wont fight for him if the attorney knows he is guilty, and understanding realities when negotiating plea bargains with the prosecutor.[xx]  Using the film, Young Mr. Lincoln,[xxi]the Article demonstrates that when an attorney does not know the guilt of his client, he is in a better position to advocate for his client’s innocence and can be more creative with his arguments.[xxii]
Defending the Guilty: Lawyer Ethics in the Movies[xxiii] provides its readers with an interesting and original medium for discussing and viewing a cornerstone topic for lawyers – ethical behaviors.  The Article’s use of films to posit hypothetical situations and then provide insight into the moral and ethical dilemmas presented in the film’s plots is both refreshingly original and intellectually astute.  The analysis and thought on a wide array of ethical situations that lawyers are faced with in representing criminal defendants, “discussed through the lens of film,”[xxiv] was a fresh perspective on the frequently discussed, but incredibly important topic of legal ethics, specifically the moral dilemma of representing a “guilty” criminal defendant. 

- Cameron A. Beaver
           

[i] J. Thomas Sullivan, Defending the Guilty: Lawyer Ethics in the Movies, 79 Mo. L. Rev. 585 (2015).
[ii] Id.
[iii] Id. at 585-90.
[iv] To Kill a Mockingbird (Universal Int’l Pictures 1962).
[v] Sullivan, supra note 1, Introduction.
[vi] Sullivan, supra note 1, Part I.
[vii] Paths of Glory (United Artists 1957).
[viii] Judgment at Nuremberg (United Artists 1961).
[ix] Tom Horn (Warner Bros. 1980).
[x] Primal Fear (Paramount Pictures 1996).
[xi] A Reasonable Man (African Media Entertainment 1999).
[xii] The Exorcism of Emily Rose (Screen Gems 2005).
[xiii] Sullivan, supra note 1, Part. I.
[xiv] Sullivan, supra note 1, Part II.
[xv] U.S. Const. Amendment VI.
[xvi] 372 U.S. 335 (1963).
[xvii] The Ox-Bow Incident (Twentieth Century Fox 1943).
[xviii] Sullivan, supra note 1, Part II.
[xix] Sullivan, supra note 1, Part IV.
[xx] Id.
[xxi] Young Mr. Lincoln (Twentieth Century Fox Film Corp. 1939).
[xxii] Sullivan, supra note 1, at 629-31.
[xxiii] Sullivan, supra note 1.
[xxiv] Sullivan, supra note 1, at 590.

Friday, April 17, 2015

Legislative Summary: RsMO Section 188.027



I.          Introduction

The Missouri legislature passed a bill requiring that women seeking abortions wait 72 hours after receiving counseling regarding the abortion procedure and available alternatives before obtaining the abortion.  The bill was originally vetoed by Democratic Governor Jay Nixon, but the veto was overridden by the Republican-controlled Legislature in September.  This “waiting period” was extended from what was previously a 24-hour requirement, making this one of the most stringent “waiting periods” in the country.    

II.        Legal Background
         
In Missouri women seeking to obtain abortions are required to receive counseling concerning the abortion procedure and alternatives to the abortion procedure.[i]  This is required to take place a certain amount of time before the woman receives the abortion.[ii]  In the past, Missouri required there be a 24-hour “waiting period” after the counseling session before the woman could obtain the abortion procedure.[iii]  In 2014, however, the Missouri legislature passed House Bills Number 1307 & 1313, which extended the mandatory “wait period” from 24 hours to 72 hours.[iv]  

Originally, Senator David Sater of Cassville initiated the 72-hour waiting period proposal after three debates among the Missouri Senate in the prior weeks.[v]  The Senate ended up adopting Senate Committee Substitute for House Bills 1307 and 1313.  House Bills 1307 and 1313 were introduced to the house by Representatives Kevin Elmer of Nixa and Representative Keith Fredrick of Rolla.  The bills were adopted by the majority.  

These house bills repealed portions of Section 188.027 and 188.039 of the Missouri Revised Statutes that pertained to “wait period” time requirements. [vi]  The bills made no other alterations to the sections, leaving intact requirements such as requiring the physician who is performing the abortion to be a qualified professional, requiring a description of the proposed abortion method, requiring a description of the long term risks of the procedure, and providing an ultrasound to hear the heart beat of the child if one is audible.[vii]  

Missouri’s Democratic Governor originally vetoed the bills amending the “waiting period,” and Senate Minority Leader Jolie Justus, a Democrat from Kansas City, led a filibuster in efforts to prevent the bill from reaching another vote.  However, the Missouri Republicans used a rare procedural move to halt the filibuster and force the vote.[viii]  The vote passed, overriding Governor Jay Nixon’s veto.   

III.       Recent Development

The 24-hour requirement had not been previously amended since its enactment.[ix]  The 72-hour requirement makes this “waiting period” one of the three most stringent in the country.[x]  Although it has yet to be challenged, other abortion laws in Missouri considered as interfering with women’s abortion rights have been held unconstitutional.[xi]  In 1979, Missouri’s requirement that abortions after the first trimester must be performed in hospitals was found unconstitutional.[xii]

IV.       Discussion

This 72-hour requirement is one of the three most stringent in the country.[xiii]  Utah and South Dakota are the other two states that require a 72-hour waiting period. [xiv]  Utah is a little less stringent in its requirements, it makes exceptions for rape or incest, while Missouri and South Dakota do not have such exceptions. [xv] Missouri does, on the other hand, make exceptions for medical emergencies, described in the statute as a situation where the mother’s life or health may be endangered.[xvi]   

Those opposed to such a long time requirement believe it is insulting because they believe women have already weighed their options thoroughly before deciding to have an abortion.  Some research shows, however, that some waiting periods, after pre-abortion counseling, lowers the number of women who obtain abortions.[xvii]  In a study by the Guttmacher Institute,[xviii]  there was a 22 percent decrease in women who obtained abortions after a law in Mississippi was passed requiring women to receive counseling and wait for 24-hours before obtaining an abortion.[xix]   

There is also an argument that by lengthening the waiting period, women will have to take more than one day off of work in order to travel to the clinic, creating a financial hardship.  Proponents argue that abortion clinics are open on the weekends, and that requiring women to take one more day off work, is not overly burdensome compared to what they would otherwise take off work for childbirth or possibly parenthood.  Specifically in the state of Missouri, proponents argue that if a woman is against waiting the 72 hours, they can travel to either Kansas or Illinois to have the procedure performed, where there are no 72-hour waiting requirement.  Those against the waiting requirement argue a woman shouldn’t have to cross state lines to exercise her reproductive freedom.  

Overall, there are many arguments being made by those in favor of the waiting period and those opposed to the waiting period.  Planned parenthood has confirmed they will not be challenging the statute.  Only time will tell if the statute will be challenged in Missouri as overly burdensome.

- Kristen Wagner

[i]  Mo Rev. Stat. § 188.027 (2014).
[ii] Id.
[iii] John Eligon, Missouri Enacts 72-Hour Wait for Abortion, New York Times, March 25, 2015, http://www.nytimes.com/2014/09/12/us/72-hour-wait-for-abortion-is-enacted-in-missouri.html?_r=0.
[iv]  Id.
[v] 72-Hour Waiting Period for Abortion Debated in the General Assembly, Missouri Catholic Conference, March 25, 2015, http://www.mocatholic.org/news/72-hour-waiting-period-for-abortion-debated-in-the-general-assembly/.
[vi] Id.
[vii] Mo Rev. Stat. § 188.027 (2014).
[viii] Jason Hancock, Missouri Republicans override Governor Jay Nixon’s Veto of 72-hour Abortion Waiting Period, Kansas City Star, March 25, 2015, http://www.kansascity.com/news/government-politics/article2048499.html (That last time Republicans cut off debate in the Senate was in 2007 on a pair of bills -- one regarding abortion and another making English the state’s official language).
[ix] Id.

[x] John Eligon, Missouri Enacts 72-Hour Wait for Abortion, New York Times, March 25, 2015, http://www.nytimes.com/2014/09/12/us/72-hour-wait-for-abortion-is-enacted-in-missouri.html?_r=0.

[xi] Timeline of Abortion laws and events, Chicago Tribune, March 25, 2014, http://www.chicagotribune.com/sns-abortion-timeline-story.html#page=1.
[xii] Id.
[xiii] John Eligon, Missouri Enacts 72-Hour Wait for Abortion, New York Times, March 25, 2015, http://www.nytimes.com/2014/09/12/us/72-hour-wait-for-abortion-is-enacted-in-missouri.html?_r=0.
[xiv] Id.
[xv] Id.
[xvi] 2-Hour Waiting Period for Abortion Debated in the General Assembly, Missouri Catholic Conference, March 25, 2015, http://www.mocatholic.org/news/72-hour-waiting-period-for-abortion-debated-in-the-general-assembly/.
[xvii] Joyce TJ et al., The Impact of State Mandatory Counseling and Waiting Period Laws on Abortion: A Literature Review, New York: Guttmacher Institute, 2009.
[xviii] Id.
[xix] Id.