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.
Kara Jo Eischen
Social media is a dominating pervasive force in our society. Various platform profiles contain a wide variety of information about users’ personalities, hobbies, and interests. Thus, people can learn a lot about each other through social media. Employers, in particular, can learn much about job applicants by screening their social media profiles to determine if they have the requisite professional skills for the open position. Employers can also protect themselves from potential liability by making sure their future hires do not pose a risk of harming others. But failing to do so may subject employers to a negligent hiring claim and civil damages.
This Note explores how employers can use social media screenings to vet job applicants and insulate themselves from civil liability. It also discusses best practices employers should use when screening applicants’ social media profiles to avoid potential privacy and discrimination claims.
Benjamin J. Kenkel
The purpose of this Note is to identify structural problems in the way the state of Iowa currently adjudicates parental rights cases and offer substantive changes to ensure every parent has access to the rights and protections afforded by the Iowa and United States Constitutions. Part II describes the definitions and framework individuals currently operate under when an adverse party presents evidence to support the termination of their right to parent their children. Part III identifies and defines the scope of a number of constitutionally deficient structural features of the current parental termination process including a diminished adversarial process; the misapplication of the standard governing ineffective assistance of counsel in termination proceedings; and a failure to recognize the inherent interest a child has in maintaining a relationship with their parents. To remedy these structural defects, Part IV recommends a reversion to a traditionally adversarial process and the adoption of a simpler, clearer effective counsel test, as well as explains the beneficial results these changes would effectuate.
For many Americans, the First Amendment is broadly understood to protect individuals from the suppression of their speech. In reality, the First Amendment is rather limited in its reach and largely concerns only the government’s restrictions on speech. Despite the reused and familiar aphorism “I can say what I like. It’s a free county,” the private employment workplace provides very little room for the First Amendment and the protection of an employee’s speech. After the Charlottesville rally in August of 2017 and after ESPN commentator Jemele Hill’s tweets about President Trump in September of 2017 (both activities that occurred outside of the workplace), many advocated for the termination of the protestors and Jemele Hill. At first glance, negative consequences for those who espouse views others deem harmful or offensive could be understood as a useful societal check on those ideas. However, upon further consideration and given the current political climate, disincentivizing speech of public concern by failing to provide reasonable protections for the political speech of private employees raises more concerns than it quells.
Although a majority of Americans broadly support the protection of speech, even speech they may find offensive, Iowa does little to protect speech of public concern as it relates to the private workplace—a place where many Americans spend a great deal of their time. Americans should not have to choose between engaging in political commentary and maintaining their source of income. It is time Iowa addresses the chilling of political speech by expanding the current public policy exception in employment law to include protections for at-will employees engaging in speech of public concern which encompass the legitimate business concerns of private employers.
M. Akram Faizer
In the 2019 decision Box v. Planned Parenthood of Indiana, a conservative U.S. Supreme Court declined to review a provision of an Indiana abortion law, which was invalidated by a lower court and purported to bar the knowing provision of sex-selective, race-selective, or disability-selective abortions. In the view of the Court’s clear conservative majority and the fact that only four of the nine justices were needed for review, the Court’s declination evidences at least two of the Court’s five conservatives deliberately avoided revisiting the abortion-rights issue. As set forth more fully below, this has to do with protecting both the Court’s institutional legitimacy and the conservative movement in today’s hyperpartisan political climate.
Saying I’m sorry is easy for a five-year-old child, but in the professional world, it is the last thing most physicians would think of saying. A simple apology has different implications within the world of professionals. While we ingrain social niceties into boys and girls throughout childhood, those niceties fall by the wayside as we grow into productive members of society. Psychologists and sociologists have no doubt hypothesized the reasoning behind how our society changes as we age. Yet, regardless of the reasoning, state and federal laws can be changed to integrate apologies back into the world of professionals.
Apologies have the power to heal individuals emotionally and mentally, and studies have shown apologizing can have a wide range of positive implications for patients, physicians, and society at large. However, apologies are often discouraged by those in the legal profession. Fortunately, there has been a recent movement throughout state legislatures to protect physicians for expressing regret or empathy to patients who experience some kind of negative result. This Note reviews the differing state and federal apology laws, the impact they have already had, and how they can further change interactions within the medical profession.
Alexandria R. Coufal
The Iowa Probate Code governs the administration of estates in Iowa. What a person leaves behind when they die is controlled by this body of law, but the Probate Code is not keeping up with the procedural laws of Iowa. The Iowa Rules of Civil Procedure and the Iowa Probate Code are directly in conflict on fundamental aspects of will contest litigation: the commencement of an action, the tolling of the statute of limitations, and the proper remedy when parties fail to comply with the rules. The basic principles of judicial economy support uniformity in the law and a need for clarity. The current Probate Code fails to provide this.
Will contests are a key aspect of probate administration and come at a highly emotional time in the parties’ lives. They have just lost someone close to them and are now embattled in litigation, making a difficult time even more difficult. Now, add confusion among the courts to the list of issues a party faces. Parties to a will contest should not have to wonder about how the rules are going to apply. It is time for the legislature to amend the Probate Code and make the rules and remedies clear for Iowans.
Skylar Reese Croy
How do originalists deal with change? It turns out many minimize the issue. Those that have dealt with it have offered solutions that are, to be generous, not great.
Some originalists, often called “new originalists,” acknowledge that correct application of the original meaning is not always clear. These originalists then turn to non-originalist principles for an answer. Some originalist scholars, such as Professors John O. McGinnis and Michael B. Rappaport, have been highly critical of this aspect of new originalism.
This Comment argues new originalism is a necessary evil. First, it argues the methods originalists to deal with change are, essentially, all the same. This Comment then labels these methods “abstraction-based originalism” because they all require the interpreter to “abstract something–such as value–from the practices of the Founding generation. This Comment argues the faults of living constitutionalism are present in both new and abstraction-based originalism, but new originalism is honest because it acknowledges the problem. This Comment also uses arguments made by textualists when discussing purpose-based statutory interpretation against abstraction-based originalism. This Comment concludes that originalist literature should be friendlier to new originalism and proposes one possible area for further study.
Surrogacy has been a feasible way for various individuals and couples to have children since the early 1980’s. Thanks to the development of remarkable scientific technologies, surrogacy has been particularly beneficial for people who strive to build a family but struggle with infertility. By 2008, 1,400 babies were born to surrogates. Surrogacy is now commonplace in society with celebrities such as Elton John, Nicole Kidman, and Sarah Jessica Parker openly discussing their reliance on surrogates to have children. Nevertheless, and perhaps unsurprisingly, the law is not keeping up with these scientific and societal developments. Four states currently ban surrogacy agreements, fourteen states allow at least one form of surrogacy agreements, and the remainder of the states—including Iowa—do not clearly address surrogacy agreements.
This Note discusses how advancements in scientific technology have allowed otherwise infertile people to have children by contracting with surrogate mothers. It then outlines the hodgepodge of laws addressing surrogacy throughout the United States and highlights ways in which this inconsistency in the law affects the rights of the parties involved in surrogacy agreements. Finally, this Note proposes that advocates of surrogacy in each state—especially in states that have not clearly addressed the issue—should urge state legislators to adopt uniform legislation on surrogacy in order to alleviate confusion and increase judicial efficiency. An example of such uniform legislation is briefly discussed at the end of this Note.
Josephine Gittler, Kathleen Kilnoski & Jerry Foxhoven
with Cyndy Danielson, Diane Dornburg, Kathy Gaylord, Jim Hennessey, Brent Pattison, Ellen-Ramsey-Kacena, Colin Witt & Breanna Young
This Article is the second in a series of symposium articles pertaining to the Iowa guardianship and conservatorship system and the Iowa Supreme Court’s Guardianship and Conservatorship Reform Task Force. The Article describes the Task Force recommendations regarding minor guardianships and Senate Judiciary Committee Study Bill 3187.
Bruce Zager, Josephine Gittler & Jerry Foxhoven
Discourse is pleased to publish a symposium on the Iowa guardianship and conservatorship system and the recommendations of the Iowa Supreme Court’s Guardianship and Conservatorship Reform Task Force (Task Force). This Article is the first in a series of symposium articles. It provides an introduction to the guardianship and conservatorship system and the Task Force.
On a daily basis, the majority of Americans casually grant sweeping permissions for mobile applications to collect massive amounts of personal information about them. Few are even aware they are doing this, and even fewer contemplate what these companies are doing with their private information. The reality is, there is virtually no federal law regulating who this information can be given or sold to. And it is not surprising—the federal law governing digital communications is older than the Internet itself.
“When current law affords more protections for a letter in a filing cabinet than an email on a server, it’s clear our policies are outdated.” In today’s world, technology advances faster than we can keep up with, and with new technology comes an inevitable tension with personal privacy. Americans should not have to choose one or the other—it is time that Congress acknowledge this prevalent issue and address it on a nationwide basis.
Diane L. Dornburg
“The parents I work with in parenting coordination are committed to being the best parents they can possibly be and know they need help navigating the bumps—and sometimes bitter conflicts—along the way. They already have a court order for custody and parenting time. They have agreed to use a parenting coordinator to resolve ongoing issues rather than continuously go back to court. Together we identify their strengths and then work to solve problems collaboratively. As a neutral professional, I provide guidance and expect accountability as they raise their children according to their agreed or court-ordered parenting arrangement.” —Diane L. Dornburg
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.
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.
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.
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.
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
Part One of a Four Part Series
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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].”
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.
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.
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.
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.
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).
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.
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.
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.