Law Commons^™

Medical Malpractice Reform In Three Southern States, Leonard J. Nelson, Michael A. Morrisey, Meredith L. Kilgore

Leonard J. Nelson III

Louisiana, Alabama, and Mississippi have adopted medical malpractice reform legislation in response to the three crises in medical liability insurance. In 1975, Louisiana adopted damages caps, created a patient compensation fund, and mandated the submission of claims to screening panels. In 1987, Alabama adopted damages caps and modified the collateral source rule, but these reforms were declared unconstitutional in the 1990s. In 2002, Mississippi adopted a damages cap. In this article we review the effect of these reforms on the malpractice environment in each state. We find that based on the total value of paid claims and paid claims per …

Presidential Powers Revisited: An Analysis Of The Constitutional Powers Of The Executive And Legislative Branches Over The Reorganization And Conduct Of The Executive Branch, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Presidential Powers Revisited: An Analysis of the Constitutional Powers of the Executive and Legislative Branches Over the Reorganization and Conduct of the Executive Branch.

Alexandra R. Harrington, Esq.

Two hundred eighteen years after George Washington was elected to serve as the first President of the United States, the Constitutional Framers would likely be heartened to know that over a dozen people are vying for the right to run as their party’s presidential candidate in the upcoming 2008 presidential election. However, these same Framers would likely be severely disheartened to learn that the powers and responsibilities assigned to the executive …

Not All It’S Quacked Up To Be: Why State And Local Efforts To Ban Foie Gras Violate Constitutional Law, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Not All It’s Quacked Up To Be: Why State and Local Efforts to Ban Foie Gras Violate Constitutional Law

What do Egyptian Pharaohs, Roman Jews, French farmers, immigrants to America, consumers of haute cuisine – and the chefs who create it – and business owners in Long Island, New York, and Sonoma, California have in common? Strangers in time, language, culture, and geography, these groups form an unlikely cohort around the humble duck and, more specifically, the love of its liver. Foie gras, as the fatty liver of a duck, goose, or mulard is commonly known, is an ingredient …

A Comprehensive Analysis Of The National Security Agency’S Wiretapping Program And Its Correlation With The Foreign Intelligence Surveillance Act, Michael Fraggetta

Michael Fraggetta

ABSTRACT This paper is an analysis of the unitary executive theory as ascribed to by the Bush/Cheney administration. The central focus of the paper analyzes the NSA wiretapping program, which was made public in 2005 and the correlation and support found for the program in the unitary executive theory. The paper proceeds with a brief history of the warrantless surveillance in the United States and the evolution of electronic surveillance jurisprudence culminating with the passage of the Foreign Intelligence Surveillance Act in 1978. The paper then explores the NSA program and analyzes, in depth, the legal arguments set forth by …

Adhesion Contracts And The Twenty First Century Consumer, Leon E. Trakman

Leon E Trakman Dean

Ecommerce has transformed the law of contract. Consumers are increasingly subject to myriads of conditions in shrink-wrap, box-wrap, click-wrap and browse-wrap contracts. Opening software wrapping or clicking “I agree” in a dialog box on a computer subjects the user to a series of onerous conditions that restrict end use and limit the supplier’s liability. These developments are counterbalance by the growth of new market-savvy classes of consumers who are willing and able to sue brand name producers in class and other actions. Faced with these Twenty First Century developments, courts struggle to find middle ground between regulating mass transactions in …

The Fatal Flaw Of Proposals To Federalize Insurance Regulation, Elizabeth F. Brown

Elizabeth F Brown

While the federal government has had the option of regulating insurance since the decision by the U.S. Supreme Court in the United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944), the states have retained almost exclusive control over insurance regulation. Within the past seven years, Congress, however, has considered three different methods of federalizing insurance regulation. Some members of the insurance industry see these efforts to federalize insurance regulation as a means of eliminating the problems in the current state system, which they view as costly, cumbersome and confusing. In the Congressional hearings on federalizing insurance, both opponents and …

Waivers Of Immunity In Federal Environmental Statutes Of The Twenty-First Century: Correcting A Confusing Mess, Kenneth M. Murchison

Kenneth M Murchison

This article traces the confusion that characterizes the waivers of immunity in federal environmental statutes. It summarizes the complicated story of increasingly broad statutory provisions combined with Supreme Court adherence to the rule of construction and explains how this historical development has produced different waivers that serve no coherent purpose. After describing the confusing array of current statutes, it offers concrete suggestions for legislative and judicial solution to the mess that constitutes the current law.

Motivational Law, Arnold S. Rosenberg

Arnold S Rosenberg

This article introduces a new concept of law’s motivational functions and the laws that serve those functions, which I call “motivational law.” Motivational law consists of those rules and principles, a purpose or function of which is to motivate people to comply with laws that regulate their conduct toward each other or their environment. Motivational laws include obscenity and censorship laws, religious laws on diet, dress, liturgy and ritual, military disciplinary rules, “soft law,” the doctrine of consideration in contract law, and even procedural due process.

Drawing on cognitive dissonance theory and other behavioral research, I conclude that motivational law …

Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig

Robin K. Craig

Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …

Trade Or Business Within The United States As N Interpretive Problem Under The Internal Revenue Code: Five Propositions, Anthony P. Polito

Anthony P Polito

Whether a particular set of activities constitute the conduct of a trade or business within the United States is an ongoing interpretive question affecting many foreign taxpayers. It controls what form of U.S. taxation, if any, applies to them. In the domestic context a trade or business entails profit-oriented non-investment activity that is regular, continuous and considerable. It is tempting, in the transition to the international context, to conclude that the conduct of a trade or business within the U.S. requires that the taxpayer’s U.S. activities must be regular continuous, and considerable, and the standard is often articulated in this …

No Two-Stepping In The Laboratories, Michael M. Pappas

Michael M Pappas

NO TWO-STEPPING IN THE LABORATORIES examines the deference standards the various states offer to agency statutory interpretation. The article analyzes these state examples and their implications for the federal Chevron doctrine.

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Stronger Trade Or Stronger Embargo: What The Future Holds For United States-Cuba Trade Relations, Michael D. Margulies

Michael D Margulies

This paper provides an analysis of the history, politics, legislation and current state of affairs of United States-Cuban trade relations. Beginning with the political climate and events that have led to the existing and limited trade relations between the two countries, the article proceeds to identify the possibility for enhanced trade. The subject of the existing legislation is important in its own right and may serve as an indicator of what potential exists for future U.S.-Cuban relations. Though such a relationship may prove to be economically beneficial for both the U.S. and Cuba, there is much more at stake from …

The Risky Business Of Lifestyle Genetic Testing: Protecting Against Harmful Disclosure Of Genetic Information, Gabrielle Z. Kohlmeier

Gabrielle Z Kohlmeier

The technological and scientific advances of nutrigenetic testing imply that the future is here, but unfortunately the legal protections are not. Nutrigenetics—the newly developing science correlating diet and genotypes—promises an easier way to escape the consequences of unhealthy lifestyles. And a large contingent of Americans, including cost-conscious employers and health insurers, are seeking such high-tech solutions. Web-based nutrigenetic testing, purportedly offering custom-tailored plans without a trip to the doctor’s office, thus captures a wide audience. The enthusiasm for nutrigenetics may obfuscate the unusual problems surrounding protection of genetic information, particularly in a market context. Upon providing genetic material, an individual …

The Fortunes & Foibles Of Exchange-Traded Funds, William A. Birdthistle

William Birdthistle

One of the most dynamic and complex new investment vehicles on the market today is the exchange-traded fund, a security that provides the diversification of a mutual fund but trades on an exchange like a stock. In just over a decade, the number of ETFs has proliferated to well over 500, attracting almost half a trillion dollars in investment. Most of that growth has occurred in just the past two years, and ETFs are projected to continue growing at a pace far faster than hedge funds and mutual funds in the coming years. Yet for all this extraordinary growth, legal …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation & The Chevron Doctrine In Environmental Law, Jason J. Czarnezki

Jason J. Czarnezki

How do the United States Courts of Appeals decide environmental cases? More specifically, how do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. Yet, more can be learned about environmental jurisprudence outside the District of Columbia, the “other” environmental agencies, and the influence of legal interpretive approaches and legal doctrine—as …

“Manifest” Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption, Colin Miller

Colin Miller

Abstract for Colin Miller, “Manifest” Destiny?: How Some Courts Have Fallaciously Come To Require A Greater Showing Of Congressional Intent For Jurisdictional Exhaustion Than They Require For Preemption Congress engages in preemption when it enacts federal legislation that supersedes any existing state and local laws in a particular field and proscribes any future state and local regulation of that field. Because preemption repeals state and local legislative authority over traditional areas of state law, courts have understandably required that preemptive legislation evince “clear and manifest” Congressional intent to supersede state and local legislation. Conversely, when Congress includes a jurisdictional exhaustion …

Large-Scale Disasters Attacking The American Dream: How To Protect And Empower Homeowners And Lenders, Matthew D. Ekins

Matthew D Ekins

The 2005 hurricane season reminded the world that such catastrophes can and do occur anywhere at anytime. Recovery efforts continue long after tides recede and after-shocks cease. In the context of Hurricane Katrina, this article examines the homeowner-lender relationship to determine risks natural disasters pose to the mortgage industry, likely repercussions a fallout in the mortgage industry may have on the health of the general economy, and what preventative steps have been and may be taken to prevent further economic suffering in a post-catastrophe environment.

Reviving Cities - Legal Remedies To Municipal Financial Crises, Omer Kimhi

Omer Kimhi

Local fiscal crises are by no means a negligible phenomenon. In the last 30 years a significant number of the nation’s cities have suffered from serious financial strain, and several large and important cities (such as New York, Philadelphia and Miami) have even experienced a full-blown crisis (where they did not have sufficient resources to finance basic public services). In this paper I discuss the legal remedies developed over the years to address local insolvency (the creditors’ remedies, Chapter 9 of the bankruptcy code and state financial boards), and I explain the logic and limits of each remedy. The analysis …

Misguided Fairness? Regulating Arbitration By Statute: Empirical Evidence Of Declining Award Finality, Michael H. Leroy

Michael H LeRoy

The Federal Arbitration Act (FAA) created a national policy that promotes arbitration. Congress passed this law to end judicial hostility to arbitration. So far, no one has questioned this premise. My Article shows, however, that nineteenth century courts enforced arbitrator awards, even those that failed to conform to “technicalities and niceties.” Acting on the mistaken advice that judges excessively interfere with arbitration, Congress enacted a law that transfers oversight of arbitration from the judiciary to legislatures.

This change is affecting how court reviews arbitrator awards. I collected data in 426 federal and state court rulings in employment disputes from June …

The Road Not Considered, Robert Blecker

robert blecker

“The Road Not Considered” suggests a morally refined death penalty statute as an alternative to abolition or keeping New Jersey’s presently flawed legislation.

Punitive Damages Claims And The Illinois Survival Act, Catherine M. Masters

Catherine M Masters

Abstract: Under the common law, which is the law of Illinois unless modified by the legislature, all claims abated on the death of the claimant. The Illinois legislature chose to enact limited modifications of the common law, allowing only compensatory and not punitive damages in survival and wrongful death actions. The Illinois Supreme Court has repeatedly interpreted the terms of the Survival Act and Wrongful Death Act as authorizing only compensatory damage claims. By reenacting the statutes subsequent to this judicial interpretation, and by rejecting amendments to allow punitive damages, the legislature has confirmed and ratified the Illinois Supreme Court’s …

Why Limit Charity?, Miranda P. Fleischer

Miranda P. Fleischer

In the wake of Hurricane Katrina, Congress temporarily lifted one of the most puzzling limits in the tax Code: the cap that prevents an individual from claiming a charitable deduction greater than 50% of her income, even if she gives more than half her income to charity. Although scholars often criticize the cap in passing for creating unnecessary complexity, few have explored its theoretical underpinnings or the broader question of whether an individual who gives all her income to charity should still pay some tax. Those who have appear hard-pressed to find a satisfactory answer to that question.

This Article …

Usury Law, Payday Loans, And Statutory Sleight Of Hand: An Empirical Analysis Of American Credit Pricing Limits, Christopher L. Peterson

Christopher L Peterson

In the Western intellectual tradition usury law has historically been the foremost bulwark shielding consumers from harsh credit practices. In the past, the United States commitment to usury law has been deep and consistent. However, the recent rapid growth of the “payday” loan industry belies this longstanding American tradition. In order to understand the evolution of American usury law, this paper presents a systemic empirical analysis of all fifty state usury laws in two time periods: 1965 and the present. The highest permissible price of a typical payday loan authorized under each state’s usury law was calculated. These prices were …

Representation Reinforcement And The Court-Congress Dialogue: A Process-Based Solution To A Processed-Based Problem, Anita S. Krishnakumar

Anita S. Krishnakumar

One of the most valuable — and disturbing — insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars have offered up a host of John Hart Ely-inspired representation-reinforcing “canons of construction,” designed to encourage judges to use their role as statutory interpreters to …

Liberal Justices' Reliance On Legislative History: Principle, Strategy, And The Scalia Effect, James J. Brudney

James J. Brudney

Abstract for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect”

This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices …

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

Zvi S Rosen

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Time Well Spent: Congressional Daylight Saving Time Legislation Saves Lives, Not Just Oil, Steve P. Calandrillo

Steve P. Calandrillo

Abstract: Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and Congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last 30 years. While Congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored. This …