Discourse

Discourse is a source for practitioners, scholars, and students to remain current on changes in local and national law.  Discourse features short legal articles, essays, and case commentaries on current topics in the legal community.

THE RIGHT REMEDY TO RIGHT CONSTITUTIONAL WRONGS: IOWA’S NEW GODFREY ACTION AND UNANSWERED QUESTIONS

Michael Jacobsma

The purpose of this Article will be to examine the basis and scope of the Iowa Supreme Court’s opinion in Godfrey, and to further examine some of the questions which the court in Godfrey left unanswered that will assuredly be faced by trial courts going forward when litigating these new “Godfrey actions.” Some of those questions could have been answered by the Iowa Supreme Court had the court accepted further review of the court of appeal’s decision in Conklin.

THE NEW NORMAL: HOW ALTERNATIVE DISPUTE RESOLUTION IS NOT SO “ALTERNATIVE” ANYMORE

COLLABORATIVE DIVORCE AS AN ALTERNATIVE TO TRADITIONAL ADVERSARIAL DIVORCE OR OTHER FORMS OF ALTERNATIVE DISPUTE RESOLUTION

Alexis Warner

Traditional adversarial divorce is often a negative experience. It frequently leads to bitter fights over assets and custody. Even outwardly sane people may find themselves in the midst of a knock-down, drag-out fight over who gets to keep the dead dog’s Christmas sweater, which makes it all the more surprising that more congenial alternatives exist but are not used. For the most part, American couples seeking divorce use traditional adversarial divorce methods instead of using alternative dispute resolution, ignoring a particularly beneficial method: collaborative divorce.

This Note will discuss the primary differences between collaborative divorce and traditional adversarial divorce, focusing on the fact that traditional divorce is more widely used and accepted by couples seeking divorce. This Note will explore the reason for this choice and why collaborative divorce is not more successful as an alternative. Additionally, this Note will touch on the benefits of collaborative divorce, especially in cases involving minor children and cases in which the couple still cohabitates. Lastly, this Note will discuss potential methods to encourage the use of collaborative divorce by eligible couples, including legislative enactment of the Uniform Collaborative Law Act and education and incentive by courts to encourage the use of the collaborative process.

THE HELP: THE ADDITION OF THIRD PARTY NEUTRALS FOR COLLABORATIVE DIVORCE PRACTICES

Anjela A. Shutts

Since the 1990s, the collaborative divorce practice has been reviewed as a healthier, easier, and more efficient way to conduct divorce settlement negotiations. In fact, the increasing growth of the collaborative divorce practice has been considered to be “one of the most significant developments in . . . family legal services in the last 25 years.” This practice was developed around the concept of becoming an “interest-based” negotiation practice. Indeed most title this practice as a “client-centered, nonadversarial negotiation process.” Unlike regular settlement negotiations, an interest-based negotiation practice does not start by identifying the standard criteria or precedents that surround such settlements. Instead, this practice focuses on the sole needs of the parties involved and decides what resources need to be made available for them to adequately resolve the dispute. By focusing on the specific needs of the family members involved in the dispute, collaborative divorce provides an efficient, supportive, and accommodating settlement method that has become attractive to families seeking a divorce settlement.

LAWYERS OF THE FUTURE: IS LEGAL EDUCATION DOING ITS PART?

Kimberly Stamatelos

Traditionally, we have measured a law student by class rank based on purely academic accomplishment. Legal employers will regale with stories of students who had academic excellence but who were ill equipped to practice law without additional tutelage in such things as time management, organization, and handling the pressures of the job. It is time to change legal education to make it more relevant, holistic, innovative, collaborative, technological, multi-disciplinary, and affordable. That is a tall order for anyone, but hey, we can do it. After all, we are lawyers.

HOW I BECAME A MEDIATOR

Richard M. Calkins

You ask, how did I make the trek from trial lawyer to mediator, from advocate to peacemaker? What path did I take that placed me in the ranks of “recovering trial lawyer”? I will tell you, for the journey was long and arduous and included passing through the hallowed halls of Drake University Law School.

CHILD WELFARE AND OUR YOUNGEST CHILDREN:
A SERIES ON IMPROVING OUTCOMES FOR FAMILIES WITH BABIES AND TODDLERS

Brent Pattison

Over the last decade or so, much has been learned about the best ways to serve families with infants and toddlers in the child welfare system. Iowa has been on the leading edge of this learning and change because Des Moines, Iowa was chosen as one of the first Safe Babies Court Teams established by the National Center for Infants, Toddlers, and Families. Led by Judge Constance Cohen, who is now retired, the Des Moines Safe Babies Court Team has pioneered a family centered, multidisciplinary approach to these cases. The goal of this Discourse series, Child Welfare and Our Youngest Children: A Series on Improving Outcomes for Families with Babies and Toddlers, is to consider some of the lessons learned from Safe Babies Court Teams and to discuss how these lessons can inform positive changes in how the legal system serves families in Iowa and beyond.

Constance Cohen

The recent explosion of research on early brain development demonstrates how critical early experiences are to mental health, physical health, healthy relationships, and wellbeing. Children who have been exposed to abuse and neglect are especially vulnerable to poor “cognitive, emotional, social and physical health.” Dependency courtrooms have a unique opportunity to convene the right team needed to help heal a family and ensure the timely delivery of appropriate services.

Part Three of a Four Part Series

PHYSICIAN PARTNERS IN SAFE BABY COURTS

Rizwan Z. Shah, M.D., FAAP

The judicial system has seen an alarming increase in the number of young children rotating in and out of home placements due to unstable and often abusive biological home environments. Often, young children are caught in a lengthy legal process to decide their permanent placement. Those professionals charged with the responsibility to represent children often receive very little education regarding early childhood development and the harmful, often permanent, negative impact caused by a disruption in developmental processes during early years. This Article provides information regarding the dynamic and continuous interaction between biology and experience that can negatively alter the developmental trajectory of a child in the absence of appropriate supportive measures.

Part Four of a Four Part Series

Working to Save Our Future: Serving Infants and Toddlers from the Child Welfare Perspective and Lessons Learned from Safe Babies Court Teams

Jacqueline D. Stubbers

Child abuse is prevalent in our society, and unfortunately, a large number of abused children are infants and toddlers. This age group presents a number of special considerations for the providers whom are working with them, specifically the child welfare social workers, as a result of their developmental abilities and the different federal requirements that exist for younger children. It is essential for the social workers whom are handling these children’s cases to understand these special considerations and to utilize best practice methods to work with these families to establish permanency for these children; however, it can be difficult for workers that don’t handle these cases often to fully understand the best practice methods that have been identified for working with these families. There are a number of specialty courts throughout the nation, including courts that focus on infants and toddlers, and Polk County has been fortunate enough to have one of these courts for over 10 years now. We have learned a number of things from the Safe Babies Court Team in Polk County that we have been able to utilize to improve our best practice skills on cases with infants and toddlers as well as cases in general, and we hope to be able to share these best practice skills with providers and social workers. This article reviews what special considerations exist for infant and toddler cases and what we have learned from Safe Babies Court Teams, which can allow us to better work with the families on these cases.


Child Welfare and Our Youngest Children CLE

Drake University Law School’s Joan and Lyle Middleton Center for Children’s Rights and the Drake Law Review co-sponsored a panel discussion and reception focused on child welfare. The event was held April 22, 4:30-5:30 p.m., at the Neal & Bea Smith Law Center, 2400 University Avenue. The event was approved for 1.0 hour of CLE credit (Activity Number: 223350).

The panel discussion featured various child welfare experts, who covered topics introduced in the Discourse online series above. Panelist included Brent Pattison, Drake Law professor; Joseph W. Seidlin, district associate judge for the Fifth District of Iowa; Judy Norris, Des Moines community coordinator for the Zero to Three National Center for Infants, Toddlers, and Families; and Dr. Rizwan Shah, a pediatrician with more than 30 years of experience in providing expert opinion in cases of child abuse and neglect.

Part 1 for the video of the panel discussion can be found here.

Part 2 for the video of the panel discussion can be found here.

Part 3 for the video of the panel discussion can be found here.

A transcript of the panel discussion can be found here.


Kelsey Leppert

In October 2014, the aid-in-dying debate in the United States reignited following an online video post by Brittany Maynard, age 29, who had terminal brain cancer and moved to Oregon to utilize Oregon’s Death with Dignity law. The aid-in-dying debate is nothing new to the United States. As medicine has advanced in the twentieth and twenty-first centuries, doctors are able to keep people alive longer, but at what cost? When is it no longer permissible or good to keep a person alive, and what rights do individuals have in refusing medical treatment and choosing to die?

This Note will address the advances and changes in end-of-life decisions: first focusing on the right to refuse medical treatment and the use of advance directives, then moving to the history of aid-in-dying legislation and how states have imple- mented this legislation, focusing on Oregon’s Death with Dignity Act. Later, this Note addresses how Iowa law views the right to refuse medical treatment and aid in dying, briefly looking into the proposed Iowa Death with Dignity Act that entered the Iowa Legislature in January 2015. The time has come to have a discussion on death, how each individual wants to die, and what can be done to ensure the last chapters of life are lived in a way that accords with individuals’ beliefs.


FRESH LOOKS TURN SOUR: INTELLECTUAL PROPERTY PROTECTIONS FOR THE FASHION WORLD

Ann Stockdale

Whether they want to admit it or not, everyone is a part of the fashion industry. Every day people get up and dress for the day, making the choice of what to wear: to dress for comfort, functionality, appearance, or any combination of factors. Perhaps it is this daily forced participation that drives a certain level of hostility towards the fashion industry.

While some people may find the fashion industry to be vain, or simply uninteresting, it remains a significant portion of the country’s—and the world’s—economy. Yet, the United States simply refuses to acknowledge its value. Repeated failures to pass legislation protecting innovative fashion design indicate that the federal government simply does not care about this type of innovation and creation.

Designers are instead turning to the courts in attempt to enforce current laws, in creative ways, to find protection for this massive industry. The Supreme Court’s ruling in Wal-Mart Stores v. Samara Bros. marked a monumental moment for all members of the fashion industry—innovators and imitators alike. When the Court ruled that apparel could be protected by trade dress, it established that unique apparel design is valuable and worthy of protection. The federal legislature should follow suit and acknowledge the value of innovative fashion design by passing legislation specifically protecting it.


BEYOND THE NUMBERS: TOWARD A MORAL VISION FOR CRIMINAL JUSTICE REFORM

Seth Mayer & F. Italia Patti

The diverse coalition of activists trying to cut the prison population has thus far failed to articulate a coherent moral foundation for criminal justice reform. Since the various constituents of this coalition support reform for different reasons, it may seem savvy to avoid conversation about moral questions. We argue, however, that failing to work toward developing a moral basis for reform puts the coalition at risk of repeating the failures of the sentencing reform movement of the 1970s and 1980s. This initially promising movement culminated in the passage of the widely disliked and deeply flawed United States Sentencing Guidelines. We lay out and analyze the downsides of avoiding moral discourse in criminal justice reform movements and argue for more collaboration and dialogue between moral thinkers and activists.


Scotland: An Example of Constitutionalism

Michael P. Clancy

This Article covers the development of Scotland as a distinct jurisdiction in the United Kingdom and examines the current proposals for the creation of an independent Scottish state.


Trolley Problems

F.E. Guerra-Pujol

Consider the following famous thought experiment: a trolley car with defective brakes barreling down a railway line at a high speed and will, with absolute certainty, kill five workers down the line unless the trolley is stopped or somehow diverted. You have four choices.


Gaming Regulatory Jurisdiction: The Dual Criteria of Location Acceptability and Applicant Suitability

Sean McGuinness, Laury Macauley, Kade Miller & Paul Bible

Gaming laws in the United States commonly require regulators to evaluate and approve two criteria before authorizing a casino to conduct gaming operations. The first is “location acceptability,” which requires the casino’s location, size, structure, physical characteristics, and amenities to conform to all applicable local and state rules and regulations. Some jurisdictions, including Iowa, also require the applicant to have a contractual relationship with a nonprofit community organization to meet location acceptability requirements. The second criterion is “applicant suitability,” which requires the operator of the proposed casino to satisfy and maintain strict background and financial probity requirements established by local and state law.


The Strategic and Discursive Contributions of the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements

Peter K. Yu

In June 2013, the internationally recognized Max Planck Institute for Intellectual Property and Competition Law (Max Planck Institute)—now the Max Planck Institute for Innovation and Competition—released its Principles for Intellectual Property Provisions in Bilateral and Regional Agreements (Max Planck Principles). Drafted by the Institute’s directors and research fellows in collaboration with a team of outside experts, this document seeks to facilitate the development of “international rules and procedures that can achieve a better, mutually advantageous and balanced regulation of international [intellectual property].”


Aunt Bee as Mom, Stepmom, or Grandmom?

Jeffrey A. Parness

The long-running—and often the most watched—1960s television program The Andy Griffith Show featured Sheriff Andy, his son Opie, and his Aunt Bee, who lived with and cared for them. During the show, neither Andy nor Bee were married, nor were they intimate with anyone. Opie had no mother, nor any man or woman apart from Bee who regularly aided Andy in his upbringing. If Andy and Bee had a falling out in the 1960s, Opie would have lived with Andy and would have seen Bee only as Andy determined. As a nonparent, Bee typically would have had no standing to seek court-ordered childcare as might a stepparent or a grandparent. Andy would have had superior parental rights even if Bee could have provided Opie with a much better home or much-needed guidance.


You Better Represent: Lessons About Lawyering from Adolescents (Real and Imagined)

Brent Pattison

When I was in college, I worked part-time at a youth shelter. Young people aged eleven to seventeen lived there temporarily while they awaited more permanent placements, or maybe a return home. When I was not being taken to school on the basketball court, cooking huge pots of spaghetti, or breaking up fights, I spent a lot of time talking with residents about their horrible experiences in foster care. Too often they were split up from their siblings, bounced around from placement to placement, and carried all of their possessions around in a garbage bag. Not surprisingly, they often wondered how the child welfare system could treat them so badly and why no one did anything about it. And here is what really blew my mind: they had lawyers.


Drake University Law School Commencement Address

Honorable Mark S. Cady

Roscoe Pound once wrote, “The law is experience, [applied continually to further experience].” Plato, centuries earlier, argued that the law is unrivaled in its ability to teach. Both were right. The law uniquely reflects our experiences in life and reveals the history of our successes and mistakes. We can learn from both. Iowa has a rich history of remarkable court decisions wherein abundant lessons for all of us can be found.


The Real Reasons the Trayvon Martin Case Should Be a Criminal Justice Poster Child

Joshu Harris

George Zimmerman is currently on trial for the fatal shooting of Trayvon Martin. The case stands out because it implicates two of our nation’s most polarizing societal issues: race and firearms. Indeed, these dimensions of the case have been underscored by early reporting on the trial, which emphasized that all but one of the selected jurors are White and two of them have guns in their homes.


A Gross Misunderstanding of Employment Discrimination

Marvin J. Lowenthal

On Friday, January 18, 2013, the U.S. Supreme Court granted certiorari in University of Texas Southwest Medical Center v. Nassar to address whether the retaliation provision of Title VII of the Civil Rights Act of 1964 (Title VII) and similarly worded statutes require plaintiffs to prove but-for causation or simply to meet the mixed-motive test (i.e., that an improper motive was one of multiple reasons the employment action was taken).


Public Policy and the Inevitability of Internet Gambling

Keith C. Miller

Iowa has been a gaming industry leader for many years.  A state lottery, riverboats, land-based casinos, pari-mutuel gambling, and racinos are all now part of the gaming experience in Iowa.  In its last two legislative sessions Iowa entered the online gaming controversy and considered bills that would allow Internet poker to be offered on an intrastate basis.  In the 2012 legislative session, a bill authorizing Internet poker even passed the Iowa Senate only to die without consideration in the Iowa House.  Nevertheless, there exists a strong sentiment that Internet gambling is inevitable, and it is not a matter of if but when it will be adopted.


 The Alphabet Soup of Transborder Intellectual Property Enforcement

Peter K. Yu

In the past few years, policymakers, academic commentators, consumer advocates, civil liberties groups, and user communities have expressed grave concerns about the steadily increasing levels of enforcement of intellectual property rights.  Many of these concerns relate to the “alphabet soup” of transborder intellectual property enforcement, which includes the following measures: SECURE, IMPACT, ACTA, TPP, COICA, PIPA, SOPA, and OPEN.


The Iowa Business Corporations Act’s Staggered Board Requirement for Public Corporations: A Hostile Takeover of Iowa Corporate Law?

Matthew G. Dore

In corporation law, a “staggered” or “classified” board of directors is one that is divided into two or three groups, with directors in each group serving staggered multi-year terms.  Three classes of directors are typical, with members of each class serving a three-year term, but only one class standing for election at each annual meeting, similar to the election pattern for U.S. Senators.  Proponents argue that a staggered board promotes “continuity, stability, and independence” on the part of corporate leadership better than the traditional unitary board structure with annual terms for all directors.