Law Commons^™

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

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As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

Something Judicious This Way Comes... The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael J. Higdon

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With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, …

Sacrificing Diversity For “Quality”: How Judicial Performance Evaluations Are Failing Women & Minorities, Rebecca Wood, Sylvia R. Lazos, Mallory Waters

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Because voters rely on judicial performance evaluations when casting their ballots, it is important that policymakers work diligently to compile valid, reliable and unbiased information about our sitting judges. This paper analyzes attorney surveys of judicial performance in Nevada from 1998‐2008. The survey instrument is similar to those used throughout the country for judicial evaluation programs. Unfortunately, none of the readily‐obtainable objective measures of judicial performance can explain away difference in scores based on race and sex. Minority judges and female judges score consistently and significantly lower than do their white male counterparts, all other things equal. These results are …

What Are We - Laborers, Factories, Or Spare Parts? The Tax Treatment Of Transfers Of Human Body Materials, Lisa Milot

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Transfers of human body materials are ubiquitous. From surrogacy arrangements, to sales of eggs, sperm and plasma to clinics, to black markets for kidneys, to pleas for donations of body materials, these transfers are covered and debated daily in popular and academic discourse. The associated philosophical and legal issues have been explored by a wide range of commentators. The appropriate tax treatment of these transactions, however, is mostly unexamined.

Current law is unclear about what the tax consequences of these transfers are. There are no statutory provisions directly on point, Internal Revenue Service guidance is outdated and conflicting, and the …

What Is The Sound Of A Corporation Speaking? “Just Another Voice,” According To The Supreme Court, Linda L. Berger

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When the Supreme Court overrules itself, and reaches a result different from the conclusions of Congress, the Executive Branch, and more than 20 state legislatures, the Court has the burden of persuasion. Did the five justices in the majority in Citizens United v. Federal Election Commission meet that burden? The author argues that the answer is no, setting aside the question of whether the majority reached the "right" conclusion about the constitutionality of limiting corporate spending in election campaigns. In this essay, the author explains her answer and addresses a related question: did the Citizens United majority observe the rules …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

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This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Don't Mistake The Proxy For The Rule: Alter Ego Liability In Tennessee, George Kuney

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No abstract provided.

Understanding The New Tennessee Small Business Investment Company Credit Act: Stimulating Economic Growth At The Intersection Of Free Market Capitalism And Government Intervention, Brian Krumm

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No abstract provided.

Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney

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The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …

Placebo Ethics, Usha Rodrigues, Mike Stegemoller

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While there are innumerable theories on the best remedy for the current financial crisis, there is agreement on one point, at least: increased transparency is good. We look at a provision from the last round of financial regulation, the Sarbanes Oxley Act of 2002 (SOX), which imposed disclosure requirements tailored to prevent some of the kinds of abuses that led to the downfall of Enron. In response to Enron's self-dealing transactions, Section 406 of SOX required a public company to disclose its code of ethics and to disclose immediately any waivers from that code the company grants to its top …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

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References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

When The Case Gives You Lemons ... Using Negative Authority In Persuasive Legal Writing, Michael J. Higdon

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No abstract provided.

Estate Planning For The Baby Boomer, Amy Morris Hess

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No abstract provided.

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

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We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines all have stories of their own. When we talk about legal authority, using our best formal logic, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, "We don’t know who discovered the ocean, but it probably wasn’t a fish."

This article teases out several familiar archetypes hidden in discussions of cases and statutes. In the midst of …

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

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Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its first …

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

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This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

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No abstract provided.

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

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Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

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No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

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This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Contested Meanings: Achievement And Ambition At An Elite Law School, Deborah Waire Post

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No abstract provided.

Contract Law, Party Sophistication And The New Formalism, Meredith R. Miller

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With increasing frequency, courts are mentioning party sophistication as relevant to whether a contract has been formed, whether a contract is enforceable, how the contract should be interpreted, and even, in some instances, the determination of an appropriate remedy. Sophisticated parties are held to a different set of rules, grounded in freedom of contract. It is presumed that a sophisticated party was aware of what to bargain for and read (or should have read) and understood (or should have understood) the terms of a written agreement.

But, just what do courts mean when they call a contracting party “sophisticated”?

“Sophistication” …

No Protectable Property Interest In Making Land Use Decisions And Other Ethics In Land Use Issues 2009-2010, Patricia E. Salkin

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This annual review of reported decisions and opinions focused on ethical considerations in land use planning and decision-making, continues to highlight the hotly litigated issues surrounding conflicts of interest of various players in the land use game.

Countermeasure Mechanisms In A P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

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The detection of deception has been the focus of much research in the past 20 years. Though much controversy has surrounded one deception detection protocol, the “Control Question Test” (NRC 2003, Ben-Shakhar 2002), an alternative test, the Guilty Knowledge Test (GKT), developed by Lykken (1959, 1960), is based on scientific principles and has been well-received in the scientific community. The GKT presents subjects with various stimuli, one of which is a guilty knowledge item (termed the probe, such as the gun used to commit a crime). The other stimuli in the test consist of control items that are of the …

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

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In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks

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The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.

Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At …

Organizations Matter: They Are Institutions, After All, John Linarelli

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Judge Posner (2010) offers a substantial agenda for organization economics. He advises us on how organization economics can shed substantial light on some of the most pressing social problems of the day. I comment on two of the areas he selects for discussion and offer some comments on the relationship of organization economics to new institutional economics. Judge Posner surely is right to argue that organization economics can help us understand the failures of corporate governance in regulating executive pay. Moreover, with additional and more institutionally nuanced theorizing, organizational economics should further our understanding of the work of judiciaries in …

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

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The Supreme Court has held that when a government regulation reduces the value of property, and a property owner challenges the regulation under the Takings Clause of the Fifth Amendment, courts should consider (1) the economic impact of the regulation upon the property owner, (2) the effect of such regulation upon the property owner’s reasonable investment-backed expectations, and (3) the character of the government action. A 2005 Supreme Court decision, Lingle v. Chevron, held that courts must focus primarily on the severity of the burden that government imposes upon property owners. Many courts and commentators interpret this language to mean …

The Art And Craft Of International Environmental Law, Daniel M. Bodansky

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International environmental law is often closer to home than we know, affecting the food we eat, the products we buy, and even the air we breathe. Drawing on more than two decades of experience as a government negotiator, consultant, and academic, Daniel Bodansky brings a real-world perspective on the processes by which international environmental law develops, and influences the behavior of state and non-state actors.

In self-contained chapters that offer a clear guide to a complex field, Bodansky answers fundamental questions about how international environmental law works. What role can law play in addressing global environmental challenges such as climate …

A Common Lawyer’S Perspective On The European Perspective On Punitive Damages, Michael Wells

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Punitive damages are generally available in common law jurisdictions, but are disfavored in civil law systems. This paper argues that the main reasons for the difference are historical and cultural. Roman law and the French Revolution heavily influenced the civil law. Civilians were taught that legal development comes from the top down. They learned to treat law as a system of general principles and to resist anomalies. They found it relatively easy to reject the intrusion of criminal themes into private law. The common law developed one case at a time, with no particular emphasis on systematic coherence. It was …