Spring 2017 Symposium Approved for 4 CLE Credit Hours

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This year’s symposium, “Disrupting the Death Care Paradigm: Challenges to the Regulation of the Funeral Industry and the American Way of Death,” will be held on Friday, February 24, 2017, from 9:30 a.m. to 3:45 p.m. in Room 1312, Worrell Professional Center, Wake Forest University School of Law. Attendees will receive four general CLE credits by the North Carolina Bar.

Read more about the program, including the agenda and registration information, on the “2017 Spring Symposium” page.

There have been a number of academic conferences addressing death and deathcare, but this symposium is unique because it is focused on the very active legal, political, and grassroots challenges to the funeral industry and the dominant paradigm of death care in this country. There are two main fronts of challenge to the existing paradigm – first, from those primarily concerned with the occupational licensing regime that shapes the funeral industry and the choices available to the public (i.e. court challenges to the casket laws and the ready to embalm laws); and second, from those primarily concerned with promoting new methods of memorialization and disposition. Caitlin Doughty, a funeral director, well-known voice in the Death Positivist movement, and the author of a New York Times best-selling book on this topic, will also give a keynote address on Thursday, February 23, 2017 at 6:00 PM.

Contact: Erica Oates, Symposium Editor: wfulawpolicyjournal@gmail.com.

Juvenile Crime: A Call for Rehabilitation, Not Recidivism

Juvenile Crime: A Call for Rehabilitation, Not Recidivism

By Shomik Gibson

Imagine yourself in a middle school hallway walking with your best friend when suddenly an intimidating, older student begins to physically bully your best friend. You can choose one of three options: one, find a teacher; two, stand idly by while your friend is bullied and hope for it to end; or three protect your friend. What would you do? Children who choose the last option, like Chad, can easily find themselves placed into juvenile detention centers and later taken from their homes for months.

The American juvenile justice system (“juvey”) is expansive. We live in a time where school administrators quickly send students straight to juvey without taking less pervasive steps and without warning the students’ guardians. Gone are the days of warnings and second chances. Gone are the days of considering whether a first time “offender” like Chad had reason for his actions.

Once sent to juvey, unlike an adult trial, the juvenile may not get a fair day in court. Juveniles face biased judges and judges who receive kickbacks. While the end goal of the juvenile detention system has always been juvenile rehabilitation, these judges are primarily concerned about their own self-interests. Chad’s probation officer assured Chad’s mother that she did not need an attorney for Chad, and adamantly assured her that Chad would be released. The probation officer failed to consider the possibility that the judge was receiving kickbacks from sending juveniles to the detention center. This type of judicial bias violates the juvenile’s right to a fair trial and deprives the child and his familial guardians of family unity.

It is imperative when dealing with juveniles that judges consider rehabilitation that prevents recidivism. Juvenile judges must consider factors surrounding and influencing the child, such as the home environment. In the case of Chad, Chad had lost his live-in grandmother the day before the incident, and he had lost his aunt the year before. These two deaths influenced Chad’s handling of the incident, but the judge never heard these factors.

A recent study showed that childhood trauma could drastically contribute to the likelihood of a child taking drugs and alcohol or becoming violent. The study explained, “[T]hat the solution to helping [the child] heal so that they won’t commit more crime is to help [the child] resolve their underlying issues instead of putting them in a system that further traumatizes them.” In situations like Chad’s, separating the child from their family is not a solution. In other more serious cases, the system must provide mental health evaluations and counseling in the hopes of rehabilitating juveniles, instead of locking them into the isolation of detention that subjects them to more trauma such as sexual assault and additional violence.

Once juveniles enter juvenile detention centers the mentality is usually “[w]e’re detention, we’re pre-adjudicated, we don’t do treatment.” Therefore, by the time juveniles are sentenced and placed into a juvenile detention center, it is too late. The juvenile detention system simply treats these juveniles like correctional facilities treat adults; it treats them like criminals.

Therefore, if our judges, as the gatekeepers and deciders of our childrens’ futures, do not protect the juvenile’s best interest, then who will? The juvenile judges have a special role in understanding the problems facing each individual juvenile and determining a plan of rehabilitation, not incarceration.

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KFC Sued Because Chicken Isn’t Overflowing: The Problem of Scant Complaints and a New Civil Procedure

KFC Sued Because Chicken Isn’t Finger-Licking Overflowing: The Problems of Scant Complaints and a New Civil Procedure

By Stephanie Criscione

This past week, a customer filed a lawsuit against Kentucky Fried Chicken (“KFC”) claiming the television ads KFC released for its “$20 Fill-Up” promotion were false advertising. Anna Wurtzburger, the plaintiff and a woman from the suburbs of Manhattan, is seeking damages of $20 million. Ms. Wurtzburger claims that the KFC $20-Fill Up commercials show an overflowing bucket of chicken, whereas the bucket she purchased contained small pieces of chicken that only filled the bucket about halfway. The five-page complaint barely lists any of the claims or even the facts in dispute other than the plaintiff’s belief that the commercials were deceptive.

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(Image) The KFC Logo

Wurtzburger v. KFC is exemplary of inherently unsuccessful consumer cases. The complaints in these types of cases generally do not have the proper elements to survive a Twombly challenge. The overzealous and expedited nature of the complaints in these cases makes them exceptionally more susceptible to a procedural dismissal for a failure to state a claim upon which relief may be granted. Claims like Ms. Wurtzburger’s are unlikely to survive a motion to dismiss. An understanding of the minimal requirements that every complaint must have would get a potentially successful plaintiff, such as Ms. Wurtzburger, to the discovery phase. In a world where more consumer lawsuits survive a motion to dismiss, the ensuing bad press in connection with those claims would help address issues related to the potentially deceptive business practices of larger corporations. A single, successful consumer lawsuit can positively alter how a corporation treats its customers, even if the press surrounding those claims is negative.

Ms. Wurtzburger’s complaint is riddled with problems and gaps that a drafter should avoid in order to survive the Twombly “plausible” hurdle. Under Bell Atlantic Corporation v. Twombly, a complaint “requires more than labels and conclusions . . . [and/or] a formulaic recitation of the elements of a cause of action.” A successful complaint must state enough “[f]actual allegations . . . to raise a right to relief above the speculative level” to survive a motion to dismiss for failure to state a claim upon which relief can be granted. The plaintiff’s complaint in Wurtzburger v. KFC does not cite the section of the New York Business Code under which relief can be sought, nor does it reach beyond legal conclusions and provide enough factual allegations to bring forth deceptive practices and false advertising claims.

The complaint also lists KFC’s principal place of business as New York, likely relying on the address where the plaintiff purchased her meal. Yet, several opinions and complaints properly list Kentucky as KFC’s principal place of business. This unfortunate oversight augments the complaint’s insufficiency under Twombly: If the complaint does not factually label and address the defendant, can there truly be a claim for relief?

sign_for_the_first_kfc_restaurant_mar_16(Image) The very first KFC location in South Salt Lake, Utah

This KFC complaint sheds light on a bigger issue in the American legal system: the time and client pressure associated with consumer complaints. Without the basic fundamentals included in a complaint, the case is unlikely to survive, and a possible meritorious claim will be dismissed before the issues can even be addressed. The answer may lie in more prevalent usage of Rule 11 sanctions. Truthfully, the use of Rule 11 in consumer suits is a double-edged sword; more forceful use of Rule 11 in these cases runs the risk of discouraging consumer complaints that should be filed and seen to fruition. Despite the chance of setting a precedent unfavorable to consumers, it remains important to reserve Rule 11 sanctions for only the most egregious infractions. Courts should not permit scant complaints and other submissions, should give them little attention, and they should be subject to immediate dismissal. Cases like Wurtzburger v. KFC should be susceptible to Rule 11.

 

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The Failure of United States Asylum Law: Women Fleeing Domestic Violence Sent Back to Their Persecutors

The Failure of United States Asylum Law: Women Fleeing Domestic Violence Sent Back to Their Persecutors

By Samantha Poon

Ms. Garcia is a young Honduran woman who went out for a night of dancing with her friends. There, she met a seemingly nice man and they soon after began dating. Eight months later, the nice man she met at a bar became her oppressor, her persecutor, her abuser. Ms. Garcia inadvertently began dating a drug dealer who beat, raped, electrocuted, and starved her. He locked her in his house, threatened to kill her, attempted to drown her, and brought her to the brink of death on multiple occasions. She was hospitalized multiple times from the physical and sexual abuse. When Ms. Garcia attempted to go to the police, they scoffed and told her that they refused to intervene in a relationship with a drug lord; her abuser had actually bribed the police to stay away. Finally, Ms. Garcia fled to the United States seeking asylum as a battered refugee. Unfortunately for Ms. Garcia and many other women in similar situations, asylum law in the United States did not favor her case. Her asylum claim was denied.

While the above plight of Ms. Garcia may be fictional, it is reflective of many asylum-seekers fleeing domestic violence. According to the World Health Organization, global domestic violence is pervasive: one in three women have faced physical or sexual violence in her lifetime. Ms. Garcia’s case is, tragically, quite common. Sometimes, the success of an asylum claim is truly the difference between freedom and a lifetime of abuse, between life and death.

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(Image) Central and South American women attempt to extricate themselves from the vicious cycle of domestic violence by seeking asylum in the United States. Currently, the United States does not broadly recognize asylum protection for these women.

Why, then, does the United States deny the asylum claims of women fleeing domestic violence? It’s due to statutory technicality of sorts. The Immigration and Nationality Act (“INA”), which governs asylum law, defines a refugee as an individual who is from another country and “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Victims of domestic violence are protected because of their “membership in a particular social group.”

No protected class designation is as heavily litigated as membership in a particular social group because of the vague intent of the class within the statue. Currently, the law arising from immigration courts and the corresponding appellate court, the Board of Immigration Appeals (“BIA”), does not broadly recognize women fleeing domestic violence as a “particular social group.” In a long-awaited case, Matter of A-R-C-G-, the BIA reasoned that “married women in Guatemala who are unable to leave a relationship” could constitute a cognizable particular social group. However, this is the only precedential case that truly recognizes women fleeing domestic violence as a valid particular social group.

Despite its relative significance, Matter of A-R-C-G- has serious limitations for women fleeing domestic violence. Primarily, the decision can be read extremely narrow to only include married women from Guatemala. This excludes women from virtually any other country. It excludes unmarried women, such as Ms. Garcia. This iteration of a particular social group excludes women who leave a violent relationship but are still stalked or otherwise harmed by their abusers. Immigration judges have held that these very factors distinguish cases from Matter of A-R-C-G- and have rejected such asylum claims based on domestic violence. Thus, Matter of A-R-C-G- opens the door to domestic violence-based claims, but does not permit passage for all who attempt to cross the threshold.

While the BIA is moving towards a more acceptable standard for women facing domestic violence, refugees like Ms. Garcia may remain unprotected under United States asylum law. The spirit of asylum law is aimed towards humanitarian relief. The BIA must move to conform its decisions to line up with this spirit and protect women fleeing tragic situations of domestic violence.

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Debating the Right to Debate: The Third Party’s View

Debating the Right to Debate: The Third Party’s View

By Grayson Lowery

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Does the First Amendment guarantee presidential nominees the right to speak at a presidential debate? Gary Johnson and Jill Stein certainly thought so. The Libertarian and Green Parties recently brought an action against the Commission on Presidential Debates (“Commission”) “claiming that the rules that bar their participation [to privately-sponsored presidential debates] violate antitrust law [and the First Amendment].” The plaintiffs stated that by exclusion, they are “denied the free, enormous coverage . . . and they are marginalized in the minds of most people in the U.S. and the media, and considered to be less than serious, peripheral, and perhaps even frivolous candidates.” In essence, plaintiffs know that without such coverage, any voter likely to cast their vote with a third party fears that they are wasting their vote.

Judge Rosemary M. Collyer dismissed the lawsuit stating that because the Commission is a private nonprofit, and not a government entity, the First Amendment argument did not apply. The plaintiffs alleged, “[P]residential debates, elections, and politics are ‘markets’ that are harmed by Defendants’ failure to invite Plaintiffs to participate in presidential debates.” Judge Collyer was not persuaded. Her opinion cited Brunswick Corp. v. Pueblo Bowl-O-Mat where the Supreme Court found that antitrust laws were not designed to protect those competing but rather to protect competition as a whole. While the plaintiffs argued that the “markets” of politics were harmed, the court found that politics as a whole was not a commercial market, like those regulated by antitrust law. The court went on to cite cases that found that “[w]hen a case involves political opponents and political objectives, not commercial competitors or market place goals, antitrust laws do not apply.”

In one of the most controversial elections to date, should those who are unhappy with their choices have the opportunity for alternative candidates to debate with Clinton and Trump? Is it the “right” thing for the Commission to invite a candidate who was consistently polling in double digits—like Johnson—to the presidential debate? Is it right, just, or fair for the Commission to require that any contender who wants to debate must have at least 15% support? Many might say that such a clause in the contract between candidates and the Commission makes sense. If a candidate is so behind in any poll, do their arguments or explanations of their ideas really matter? In an election where many are turning from their parties, these new voices could have been met with great welcome; however, because third party candidates are almost always incredibly behind in the polls, their voices may never reach a presidential debate. It would seem that the Commission’s standards may actually further the idea that there are only two candidates for which an American could elect into office.

Should the plaintiffs’ argument prevail, the court would be promoting policy that would cause any private entity that incidentally produces commercial activity to be considered a market to be governed by antitrust laws. Furthermore, a private entity that provides a public service would be considered a public forum in which First Amendment rights must apply. This court, as well as many courts before it, says this is not the way things should be. While this is certainly the opinion of the past and present, such ideology presents many questions when decisions and ideas have a powerful impact on society as a whole. The application of the First Amendment rights of private organizations and antitrust laws may have been misdirected; when dealing with issues that have such a profound impact on American society there should be different standards that govern nationally publicized campaign issues.

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Laying Down Arms: Rethinking AR-15 Manufacturer Liability

Laying Down Arms: Rethinking AR-15 Manufacturer Liability

By Anna Armistead

A Connecticut judge dismissed a lawsuit brought by the families of the victims of the Sandy Hook Elementary School shooting against the seller, distributor, and manufacturer of the gun used to kill twenty-six people in the 2012 mass shooting. The families named as defendants the actual maker of the Bushmaster AR-15 rifle, Remington Arms, along with its distributor, Camfour, and the company that owned the gun store where the suspect purchased the weapon, Riverview Sales. In their lawsuit, the plaintiffs essentially argued that the AR-15 rifle “should never have been sold in the civilian marketplace.”

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(Photo) A Colt AR-15 Sporter SP1 Carbine 

The plaintiffs brought their suit under a negligent entrustment exception to the Protection of Lawful Commerce in Arms Act (“PLCAA”). PLCAA prohibits lawsuits “against manufacturers, distributors, dealers, and importers of firearms . . . for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.” As defined by PLCAA, negligent entrustment is “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.” The judge dismissed the case because of Congress’s “clear intent to narrowly define ‘negligent entrustment.’” Under this narrow construction, the only use of the weapon subject to legal action was the criminal misuse of the weapon by the shooter himself, Adam Lanza. Thus, the judge ruled that the plaintiffs’ case against the weapon’s manufacturer, distributor, and seller “[fell] squarely within the broad immunity provided by PLCAA.”

The necessity of plaintiffs having to bring their suit under a negligent entrustment theory represents a poor policy choice in regards to whether the firearm industry may be held liable in a mass shooting context. While it makes sense that Remington Arms, Camfour, and Riverview Sales did not have knowledge of Lanza’s propensity to use the AR-15 for a criminal purpose­—as required to have a cognizant negligent entrustment claim—it is difficult to imagine someone using the weapon for many other activities outside the broad purpose of killing. While the court’s slippery slope analogy to cases of negligent entrustment in the automobile and ATV context is appealing on its face, the marked difference in the intended use of AR-15 rifles compared to the intended use of automobiles and ATVs causes the argument to fall apart. The intended, and nearly only, purpose of cars and ATVs is transportation, as opposed to the AR-15’s mission to quickly discharge bullets for the purpose of incapacitating and killing.

As the civilian counterpart weapon to the fully automatic, military issue M16, the AR-15 is on the high danger side of the spectrum because it is designed and has been used to kill humans in large numbers on numerous occasions. While the argument may be made that killing animals is also a valid purpose, the prevalence of other firearms designed and used for hunting undercuts this argument’s credibility.

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(Photo) A memorial dedicated to the 20 children and 6 teachers killed in the Sandy Hook Elementary School shooting (Newtown, Connecticut) on December 14, 2012. 

Thus, instead of forcing the relatives of mass shooting victims to seek restitution through inefficacious arguments using narrowly-tailored exceptions like negligent entrustment under PLCAA, a more realistic and worthwhile alternative is to use a form of the primary purpose test. As it exists in products liability, a court uses the primary purpose test to determine the level of liability a manufacturer and distributor would be subject; the more dangerous the intended use of the product, the higher the liability for the companies that manufacture and distribute the respective product. In the AR-15 context, the intended purpose of the weapon is to incapacitate and kill. Consequently, this signifies a highly dangerous, intended use because a product primarily used to kill presents an inherent danger to the public merely through existing. The possibility of a catastrophe like a mass shooting exponentially increases when a person purchases an AR-15.

In conclusion, despite the grain of truth in the popular idiom “guns don’t kill people, people kill people,” preventing the killers in Aurora, San Bernardino, Orlando, and Newtown from using, owning, or even purchasing quick-release AR-15 rifles in their attacks would likely have saved lives. Therefore, holding the manufacturers and distributors to a higher liability standard using the products liability standard of primary purpose would protect citizens from future “lone wolf” shooters and would protect these lone wolves from themselves by stemming the current wide availability of the weapon.

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Welcome from the Editor-in-Chief

law-policy-700x280Welcome to the Wake Forest Journal of Law & Policy’s new blog, De Novo! The idea of De Novo began with the Volume 6 Board of Editors and, along with our new website, was implemented by the Volume 7 Board. With the launch of De Novo, we hope to further the Journal’s mission to introduce and advance discourse consistent with Wake Forest’s motto of “Pro Humanitate” by examining salient topics that explore the intersection of provocative legal issues surrounding public and social policy. The blog will consist of posts written by Journal staff members and editors, Wake Forest students and faculty, and professionals in the legal and academic community. Those interested in publishing on De Novo should contact our Executive Online Editor, Dan Choyce, for details on blog post requirements and submission guidelines.

 

The Journal of Law & Policy is excited to join our sister publications at Wake Forest University School of Law in introducing this new platform to advance scholarly discourse in a concise, timely manner. We will continue to publish two print issues annually that explore broader interdisciplinary topics, as well as our online supplemental publication, Sua Sponte. Thank you for your interest in the Journal and De Novo—we look forward to continuing our tradition of providing high-quality and relevant scholarship to the legal community.

 

–Chris Salemme, Editor-in-Chief