Law Commons^™

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

Restoring The Right To Organize In The Private Sector, James Newell

James Newell

No abstract provided.

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Nadia N. Sawicki

One of the most enduring debates at the intersection of administrative and tort law focuses on the challenge of identifying the most effective means of ensuring consumer safety. In some circumstances, standard-setting administrative regulations may be sufficient to protect consumers from harm while at the same supporting the growth of valuable industries. In other circumstances, regulation may need to be supplemented by a complementary tort regime that fills the compensation gap when consumers suffer injury. The discussion among policymakers and legal scholars about which system to favor is continually playing out in a variety of arenas, most notably in the …

Opening Doors: Preventing Youth Homelessness Through Housing And Education Collaboration, Courtney L. Anderson

Courtney L Anderson

This article will contribute to the general literature on homelessness by recommending that permanent supportive housing units for homeless children, youth and families provide education services in order to prevent and end homelessness among families, youth and children. I will explain how the legal framework for such housing requires a broad interpretation of the McKinney-Vento Homeless Assistance Act, and assert that federal programs provide a foundation for the creation of such housing. Identifying and educating homeless youth is particularly challenging as the majority of homeless youth live on the streets or in the homes of others, suffer from serious mental …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

The Federal Government’S Ability To Respond To A Major Terrorist Attack: Issues, Concerns And Inadequacies In The Disaster Law Construct, M. Jonathan Gil

Michael J Gil

The cunning and zeal of the world’s terrorist organizations require that this country prepare itself for large-scale disaster relief operations. As it stands, the Stafford Act, as well as federal and local government policies are lacking. The federal government has floundered in past situations, and Americans have died as a result. In order to remedy these shortcomings, the government should take two different stances: hands on, and hands off. The hands-on approach is designed to address the shortfalls of past disaster response and the current system, while the hands-off approach is designed to allow the entire relief operation to operate …

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Nadia N. Sawicki

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first …

Unclear And Unconvincing: The Truthiness Requirement Of California's Ballot Pamphlet Arguments, Michael Boardman

Michael Boardman

“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to …

Corporate Social Responsibility After Citizens United, David G. Yosifon

David G. Yosifon

The Supreme Court recently held Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did very little to inform the Court’s thinking in Citizens United, this article argues that the holding in Citizens United requires us to rethink corporate theory. Specifically, this article demonstrates that the shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy, mainstream corporate theorists have long argued, because we can rely …

Corporate Social Responsibility After Citizens United, David G. Yosifon

David G. Yosifon

The Supreme Court recently held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did very little to inform the Court’s thinking in Citizens United, this article argues that the holding in Citizens United requires us to rethink corporate theory. Specifically, this article demonstrates that the shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy, mainstream corporate theorists have long argued, because we can …

The Persistence Of Low Expectations In Special Education Law Viewed Through The Lens Of Therapeutic Jurisprduence, Richard Peterson

Richard Peterson

For more than thirty-five years a paradigm of low expectations has infected efforts to educate children with disabilities and has been a persistent and stubborn obstacle to the successful implementation of the Individuals with Disabilities Education Act (IDEA), and its predecessor, the Education of All Handicapped Children Act (EAHCA). This dilemma raises questions addressed in this paper: What is meant by low expectations in the context of Special Education Law? What are the root causes of this phenomenon, and what makes it so resistant to change? How does it impede implementation of the IDEA? And lastly, in what ways does …

Profiled In 360 Jacksonville, Susan Daicoff

Susan Daicoff

No abstract provided.

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish are inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

Science, Public Bioethics, And The Problem Of Integration, Orlando Carter Snead

O. Carter Snead

Public bioethics — the governance of science, medicine, and biotechnology in the name of ethical goods — is an emerging area of American law. The field uniquely combines scientific knowledge, moral reasoning, and prudential judgments about democratic decisionmaking. It has captured the attention of officials in every branch of government, as well as the American public. Public questions (such as those relating to the law of abortion, the federal funding of embryonic stem cell research, and the regulation of end-of-life decisionmaking) continue to roil the public square.

This article examines the question of how scientific methods and principles can and …

Boumediene V. Bush And Guantánamo, Cuba: Does The "Empire Strike Back"?, Ernesto A. Hernandez

Ernesto A. Hernandez

Focusing on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantánamo Bay, Cuba, this article argues that the base’s legal anomaly heavily influences “War on Terror” detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantánamo but retains “complete jurisdiction and control” for an indefinite period; while Cuba has “ultimate sovereignty.” Gerald Neuman labels this as an anomalous zone with fundamental legal rules locally suspended. The base was chosen as a detention center because …

Stalking The Walking Wounded: An Empirical Study Of Lawyer Distress, Work Satisfaction, And Decisionmaking Preferences, Susan Daicoff

Susan Daicoff

Abstract: Attorney distress is an empirically-documented phenomenon. Depression and alcoholism, for example, occur among attorneys at about twice the rate found in the general population. Empirical research also suggests that certain personality attributes and decisionmaking preferences distinguish attorneys from the general population. Previous research had investigated the relationship of lawyer dissatisfaction to certain personality attributes and decisionmaking preferences, as well as the relationship of law student distress to values. Focusing on practicing lawyers, this empirical study investigated the relationship between attorney distress, work dissatisfaction, and two decisionmaking preferences. This study found no relationship between the two decisionmaking preferences and attorney …

Why Are Lawyers So Depressed?, Susan Daicoff

Susan Daicoff

No abstract provided.

Three Short Articles, Susan Daicoff

Susan Daicoff

No abstract provided.