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West Virginia's Adoption Statute: A History Of A Work In Progress, Lisa Kelly

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More than two years have passed since the Legislature reformed West Virginia's adoption statute. The goal of this article is to provide a kind of legislative history to deepen the reader's understanding of the current statute. This history will include an explanation of the West Virginia Law Institute's Proposal, as well as the Legislature's reaction to it. In Part II, I will detail this history. In Part III, I will explain the operation of the current statute, with mention of the few recent adoption decisions that have construed various provisions. In Part IV, I will look at some of the …

Telemedicine And Integrated Health Care Delivery: Compounding Malpractice Liability, Patricia C. Kuszler

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This Article considers how theories of medical negligence might be applied in the context of telemedicine and integrated delivery health plans. Part Two summarizes the history of telemedicine, its increasing breadth of application and opportunity and promise for the future. Part Three reviews traditional negligence principles and precedents and demonstrates how they might be applied when a telemedicine interaction results in negligence and harm to the patient. Part Four discusses evolving theories of shared liability applicable to health plans and managed care entities. Finally, Part Five demonstrates how shared liability theories will be applied to situations involving telemedicine technologies.

Breaking Out Of "Custody": A Feminist Voice In Constitutional Criminal Procedure, Dana Raigrodski

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In this Essay, I suggest that reexamination of this field of law through a feminist lens can shed new light and add to the understanding of constitutional criminal procedure. These insights, in turn, can and should generate a positive feminist jurisprudence of criminal procedure—a distinctive feminist voice to be integrated systematically into our constitutional criminal procedure and our criminal justice system. Applying feminist legal theories to particular areas of constitutional criminal procedure may help guide us through the more difficult task of constructing a positive feminist jurisprudence of constitutional criminal procedure. Many areas of constitutional criminal procedure lend themselves as …

The Most Creative Moments In The History Of Environmental Law: "The Who's", William H. Rodgers, Jr.

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My definition of creativity in environmental law is any legal initiative that advances the subject with new levels of analysis, structure, or institutional bridges. There are two requirements: improvement on function and novelty. Law is better if it increases the prospect of protecting the natural world or its inhabitants. Law is novel if it combines mandate, process, or structure in unusual ways.

There are reasons to suspect that environmental law as a field may be more creative than other legal subjects such as trust and estates, contracts, property, or tax law. One reason, as Oliver Houck has said, is that …

A Survey Of Sexually Abusive Experiences In Childhood Amongst A Sample Of Third Level Students, Kevin Lalor

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The following survey is an investigation into the nature, incidence and effects of childhood sexual abuse as experienced by a sample of third level students in Dublin. Unwanted sexual experiences whilst under the age of sixteen were surveyed. Response rates were high and indicate that unwanted sexual experiences prior to age sixteen are experienced by some 30% of female respondents. Indecent exposure was the most frequently reported experience. This figure falls considerably for contact and penetrative forms of abuse. Long term effects of non-contact forms of abuse were most frequently reported as embarrassment. More acute effects, such as suicidal tendencies, …

Three's A Crowd: A Feminist Critique Of Calabresi And Melamed's One View Of The Cathedral, Jeanne L. Schroeder

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The article critiques Calabresi and Melamed's trichotomy of property rights, arguing that it oversimplifies property as a binary relationship between subject and object, neglecting the complexities of enjoyment and third-party interests. By employing a feminist and Lacanian psychoanalytic perspective, the analysis highlights how this framework fails to address the dynamic, relational, and intersubjective nature of property, particularly in environmental disputes. The author advocates for a more inclusive understanding of property that incorporates both masculine and feminine metaphors, emphasizing the need to move beyond possession and exchange to recognize the mutual constitution of entitlements and law.

Enforcing Family Promises: Reliance, Reciprocity, And Relational Contract, Melanie B. Leslie

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Courts are willing, in commercial contexts, to enforce promises even without consideration when enforcement supports a norm of reciprocity-a norm which recognizes that promises are seldom totally gratuitous, but are often made in furtherance of reciprocal, long-term, trust-based relationships. In this article, Professor Leslie argues that relational contract principles are firmly embedded in wills law. Courts enforce the reciprocity norm in the family context just as they do in commercial contexts; this enforcement is seen, however, not in breach of promise suits, which occur rarely between family members, but rather in will contests. Despite the prevalent ideology of wills law, …

The New Legal Process: Games People Play And The Quest For Legitimate Judicial Decision Making, Ronald J. Krotoszynski Jr.

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No abstract provided.

Goodbye To Hammurabi: Analyzing The Atavistic Appeal Of Restorative Justice Prosecuting Violence: A Colloquy On Race, Community, And Justice, Richard Delgado

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Democratic Formalism, A Matter Of Interpretation, Cass R. Sunstein

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Distributing Your Inheritance Fairly: Equity Theory And Will Power, Morton Isaacs

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187 Ss simulated distributing $100,000 in a will to their three children, one of whom was described as High Equity/Low Need, one described s Low Equity/High Need, and one described as Low Equity/Low Need. The majority of Ss allocated equal amounts of money to all their children, although a substantial minority chose to give more to the needy child. Few chose to assign more to the High Equity/Low Need child. Both respondents' gender and age influenced the pattern of distribution but not the targets' gender. The implications of the results for Equity Theory are discussed.

The Problematics Of Moral And Legal Theory, Richard A. Posner

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In these Holmes Lectures, delivered a century after the publication of Oliver Wendell Holmes's great essay The Path of the Law, Judge Posner argues for an essentially Holmesian conception of the proper relations among modern normative moral philosophy ("academic moralism"), morality, and law. Academic moralism, he argues, lacks either the intellectual cogency or the emotional power to change people's beliefs or behavior; the power to do so resides in "moral entrepreneurs," which academic moralists emphatically are not. Academic moralism's lack of cogency disqualifies it to guide judicial decisionmaking even - in fact, especially - in cases involving controversial moral issues, …

A Behavioral Approach To Law And Economics, Cass R. Sunstein, Christine Jolls, Richard H. Thaler

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Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article

Professionalisms, Richard A. Posner

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Reply To Critics Of The Problematics Of Moral And Legal Theory, Richard A. Posner

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No abstract provided.

Assessing Punitive Damages (With Notes On Cognition And Valuation In Law), Cass R. Sunstein, Daniel Kahneman, David Schkade

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No abstract provided.

How To Win The Trial Of The Century: The Ethics Of Lord Brougham And The O. J. Simpson Defense Team, Albert W. Alschuler

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Explaining The Public Wariness Of Juries, Albert W. Alschuler

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Competition And Cooperation, Saul Levmore

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Modeling Morality: What Are The Limits To Self-Directed Preference Change?, Richard H. Mcadams

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No abstract provided.

Against Constitutional Theory, Richard A. Posner

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In this Madison Lecture, Chief Judge Posner advocates a pragmatic approach to constitutional decisionmaking, criticizing constitutional theorists who conceal their normative goals in vague and unworkable principles of interpretation. After discussing specific constitutional theories as well as the legal academy's increasing reliance on theory in genera Posner demonstrates the ineffectuality of constitutional theory, using the Supreme Court's decisions in United States v. Virginia and Romer v. Evans as examples. He argues not that these cases were necessarily wrongly decided, but that the opinions lack the empirical support that is crucial to sound constitutional adjudication. Posner urges law professors to focus …

Living Dangerously: A Defense Of Mortal Peril, Richard A. Epstein

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As one of the most controversial writers of our time, just the name Richard Epstein draws immediate attention from all sectors of academia. But if the hallmark of great ideas is the criticism they engender, Professor Epstein's words and thoughts are powerful indeed. In Mortal Peril, Professor Epstein outlined a fundamental shift in thinking that he claimed needed to occur before any discussion of health care could take place. The final consensus of the validity of Professor Epstein's views may still be a matter for history to judge, but in many ways, he has already won; with the strength of …

Incommensurability: Truth Or Consequences?, Brian Leiter

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No abstract provided.

The Race To Innocence: Confronting Hierarchical Relations Among Women, Mary Louise Fellows, Sherene Razack

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Sexual Dis-Orientation: Transgendered People And Same-Sex Marriage, Mary I. Coombs

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In this Article, Professor Coombs argues that the debate about same-sex marriage has wrongfully ignored transgendered people and their relationships. She provides an overview of arguments made by opponents of same-sex marriage, such as tradition, procreation, child-rearing, and family values. She then examines cases involving transsexual marriages and uses this analysis to deconstruct the same-sex marriage debate. Professor Coombs argues that an honest consideration of transgendered people and their relationships forces a re-evaluation of arguments against same-sex marriage and disrupts the gendered patriarchy on which traditional marriage rests. Marriage should be seen as a relationship between two people, regardless of …

Risk Assessment, Resource Allocation, And Fairness: Evidence From Law Students, Cass R. Sunstein, Christopher E. Houston

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No abstract provided.

Theories And Tropes: A Reply To Posner And Kelman, Cass R. Sunstein, Christine Jolls, Richard H. Thaler

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No abstract provided.

Erie And The Irrevelance Of Legal Positivism, Jack L. Goldsmith, Steven Walt

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Women, Morality, And Sexual Orientation, Mary E. Becker

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In this Article, Professor Becker argues that heterosexual relationships are more problematic for women than lesbian relationships, particularly when such relationships are viewed in terms of their tendency to objectify the "other." She discusses how current "moral" norms concerning the inferiority of homosexuality to heterosexuality enable men to use women in immoral and subordinating ways. She explores moral taboos against lesbian relationships and asserts that these taboos facilitate heterosexual male exploitation of women's sexuality by obscuring from some women the possibility that they might prefer more equitable relationships with women rather than with men. She argues for greater acceptance of …

Constructing A Jury That Is Both Impartial And Representative: Utilizing Cumulative Voting In Jury Selection, Edward S. Adams, Christian J. Lane

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One of the main and ongoing problems plaguing the American jury system has been ensuring that juries in civil and criminal trials are truly representative of the communities in which they serve. Historically, minorities have been disproportionately excluded from jury service. This shortfall results from a combination of factors at each stage of the juror identification process. At the jury pool stage, juror notification methods often fail to identify or reach minorities for tie simple reason that minorities generally are poorer and more transient. At the venire stage, those minorities who actually receive notification report to the courthouse at a …