Volume 20, Issue 2 (Spring 2023)

Breaking Up With the American Adversarial Approach in Criminal Domestic Violence Adjudication

Tess Berkowitz

This paper takes the position that for survivors of domestic violence to be properly served by the legal system, such legal service must be made accessible through trauma-informed care.  This includes trauma-informed care for both for the survivor and the abuser.  This paper leaves to another day the topic of exactly what “justice” in such cases ought to be.  However, it takes the position that true “justice” should not be sought in a system that was not made to address this specific kind of violence and fact worsens the resulting trauma.  This paper asserts that the American adversarial system, regardless of different attempted safeguards, is unable to deliver justice in a trauma-informed manner.  This paper argues that, should certain hallmarks of the inquisitorial approach be integrated into the adjudication of domestic violence, survivors, defendants, and society, in general, would benefit greatly.  These elements include adopting a free proof approach to discovery, shifting the contest mentality between the prosecution and defendant to one focused on seeking truth and resolution, performing investigative interviewing of parties by a neutral trauma-informed fact-finder, and addressing domestic violence in a rehabilitative, rather than punitive, manner.

Read More.


John Byrnes

Like many families during the COVID-19 pandemic, the Hortons hoped to refinance their home with a lower interest rate.   Surrounded by midcentury homes valued at upwards of a half a million dollars in Jacksonville, Florida, the couple expected a modest appraisal of around $450,000.   However, the appraiser came back with a value of $330,000, shattering their dreams of a successful refinance.   As the Black member of an interracial couple, Abena Horton suspected discrimination—and she conducted an experiment to prove racial bias.

Read More.

The Untold Story of the United States’ Anti-Kickback Laws

Chinelo Diké-Minor

Anti-kickback laws—laws prohibiting payments to induce or reward referrals of health care—are a significant tool in the government’s arsenal against health care fraud.  However, although a majority of Americans have health coverage through private health insurance, the primary U.S. law addressing kickbacks, the Anti-Kickback Statute, protects only government health insurance plans (and not all of them at that).  To date, the story of Congress’s attempts to extend the protections of the Anti-Kickback Statute to private health insurance plans has not been told.  This article tells that untold story, a story that centers on the multiple unsuccessful—but bipartisan—efforts during the Clinton health care reform era to expand the Anti-Kickback Statute’s protections to private plans.  Significantly, these efforts received support from law enforcement and the private insurance industry. It then tracks continued, albeit less in-depth, discussions of whether the Anti-Kickback Statute applied to private plans on the 2010 Affordable Care Act’s (“ACA”) and it discusses the passage, in 2018, of a second criminal anti-kickback law, the Eliminating Kickbacks in Recovery Act (“EKRA”), which with little to no discussion, took a different approach, and included both government and private plans in its protections, but only as it pertains to a limited subset of opioid-related activities.  This article notes that in light of all the support from law enforcement and the private sector for expanding the Anti-Kickback Statute to private plans, EKRA’s passage, may signify a willingness by Congress to reconsider the reach of the Anti-Kickback Statute. This article is the first in a two-part series on U.S. anti-kickback laws.

Read More.

“I’m Not a Biologist”: A Hayekian Perspective on the Judge’s Implementation of Knowledge and the Umpire Analogy

Mark Edward Blankenship Jr.

While the renowned metaphor of judges as umpires has continued to hold relevancy, it has continued to face scrutiny in recent years.   Moreover, the metes and bounds of judges are still arguably ambiguous to this very day.  As Justice Kagan put it, “because it wrongly implies that high-court judging ‘is a kind of robotic enterprise . . . that everything is clear cut.’”    This legal juxtaposition raises immense concerns about (a) the degree of knowledge necessary to play by the rules in a technologically advancing society, and (b) the roles and expectations of our justice system, especially within the Supreme Court of the United States (SCOTUS), which for years has become labeled as “anti-science.”   How can justices improve in applying the rules?  How does one effectively interpret the rules and laws of a nation for the good of the people when society falls into a state of educational regression?   Is there a way that SCOTUS can make better informed decisions?  Overall, knowledge of the rules alone would not be enough.

Read More.