Law Commons^™

News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert

ExpressO

With cases in the news like the McDonalds case, it has left the public with a very distorted view of the civil justice system. Information about the civil litigation system is critical because citizens report that the news media is their primary source of information about the court system, an even more important source than contact with the courts themselves. With the general public relying primarily on the news media as their source of information, it is necessary to examine what is being reported and the frequency of covering both sides to the story, the true story.

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi

ExpressO

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other – especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused …

Judicializing Federative Power, Richard Broughton

ExpressO

The federal Constitution is ambiguous about federative power, Locke’s description of the power over war and foreign relations. On the one hand, the Constitution is plainly un-Lockean, dividing federative power between Congress and the President and contemplating that they will exercise responsibility, and sometimes competing prerogatives, in war and foreign affairs. Yet there is a rich constitutional and political history in America suggesting that the constitutional scheme is more Lockean than at first blush, even if informal and hidden in complexity. This paper responds to two distinct, but related, lines of argument that seek to limit especially the executive’s Lockean …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this …

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The standard …

The Hidden Harm Of Law And Economics, Daniel I A Cohen

ExpressO

The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category, …

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Of Elephants And Embryos: A Proposed Framework For Legal Personhood, Jessica Berg

ExpressO

No abstract provided.

Doomsday: A Look At The Ethical Issues Behind The Government's Coercive Powers In Response To A Public Health Nightmare., Jacob M. Chapman

ExpressO

This article posits a hypothetical scenario in which a deadly pandemic is unleashed upon the United States and the several individuals whom appear to have a natural immunity refuse to participate in necessary research. The article then examines the possible legal and ethical approaches available for reacting to the pandemic.

The hypothetical scenario addressed in this article highlights a gap in current public health law. While various states have laws and procedures relating to quarantine and forced inoculation, these laws and procedures do not suggest whether the state may or may not coerce non-threatening individuals into participating in potentially dangerous …

Prosecutors: Factors To Aid Your Filing Decisions With Respect To Fatal Traffic Collisions, Kimberly Rebecca Bird

ExpressO

As you may know, on a fairly regular basis, prosecutors are faced with filing decisions with respect to fatal traffic collisions. Many of them, of course, do not involve criminal negligence and are not prosecuted as crimes. Sometimes, on the other hand, the circumstances are egregious and the decision to be made is whether to file a case as a vehicular manslaughter or as a murder, on an implied malice theory. There are a finite number of California Supreme Court and Court of Appeal cases (beginning with People v. Watson (1981) 30 Cal.3d 290) that have addressed the sufficiency of …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Conditional Effects Of Ideology And Institutional Structure On Judicial Voting In State Supreme Courts, Jeff L. Yates, Paul Brace, Brent Boyea

ExpressO

Two enormously influential perspectives on courts offer fundamentally different predictions about court outcomes and the effects of judge ideology on those outcomes. Well-known to political scientists studying courts, the ideological voting (IV) literature argues that judge ideology is a strong predictor of court outcomes and that those outcomes should be proximate to the policy preferences of courts. Less known to political scientists but highly influential, the law and economics perspective (LE) focuses on settlement behavior of litigants who try to minimize costs and thus estimate likely outcomes in court, and settle simpler cases pre-trial. In this case selection process litigants …

Confidential Informants In Private Litigation: Balancing Interests In Anonymity And Disclosure, Ethan D. Wohl

ExpressO

Heightened pleading standards and limits on discovery in private securities fraud actions make confidential informants crucial in many cases. While courts have widely recognized the importance of confidential informants and the need to protect them from retaliation, they have not applied consistent standards for how informants must be identified in pleadings, and have failed to take into account substantial bodies of relevant caselaw when deciding whether to require that informants’ names be disclosed in discovery.

This article offers a framework for when and how confidential informants should be identified, taking into account the competing interests in anonymity and disclosure. It …

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

From Origin To Delta: Changing Landscape Of Modern Constitutionalism, Jiunn-Rong Yeh, Wen-Chen Chang

ExpressO

This article deals with the question of whether and to what extent the two forces of democratization and globalization have altered our understandings of constitutionalism. We attempt to theorize a changing landscape of constitutionalism that includes transitional and transnational perspectives and examine respectively their features, functions and characteristics. First, we analyze respective developments of transitional and transnational constitutionalism by identifying their features, perspectives, functions, and characteristics. Then we examine to what extent and in what ways the developments in transitional and transnational constitutionalism pose challenges to our traditional understanding of modern constitutional laws. Finally, we shall picture a new constitutional …

Theories Of Supranationalism In The Eu, Rafael Leal-Arcas

ExpressO

Supranationalism has been a topic of analysis from various points of view when trying to understand the process of European integration. This article aims at presenting the major theories of supranationalism when discussing the ongoing process of European integration. Three main theories are examined: 1) normative versus decisional supranationalism; 2) theories of partial integration, and 3) legal theories of economic integration (such as the neo-liberal economic policy, the European Community (EC) as a special-purpose association of functional integration, as well as the theory of the supranational and intergovernmental dual structure of the EC).

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

ExpressO

During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes for the occurrence: …

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy

ExpressO

This article approaches the issue of securities regulation starting with an examination of the nature and role of markets and financial markets. It next outlines the various arguments for and against regulation, and then looks at approaches taken by markets and their regulators. The approaches are government regulation, self-regulation and co-regulation, and the structural changes via demutualization and corporate governance. With this background, it turns to examine how these approaches have played out in the markets themselves. The article surveys the regulatory aspects of the ASX, NYSE and the SGX, and reviews the regulatory and financial performance of the markets. …

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

Legal Construct Validation: Expanding Empirical Legal Scholarship To Unobservable Concepts, David S. Goldman

ExpressO

This article contends that many of the fundamental concepts of law (such as justice, incentives, and deterrence) are not directly measurable, and have, therefore, been largely ignored by empirical legal scholarship. Fortunately, other social sciences have confronted this same obstacle and have developed methods with which to empirically assess these intangible concepts. I propose that the concept of construct validation, which has been developed in the psychology subfield of psychometrics, can be adapted to law to measure these unobservable traits. To adapt construct validation to law, empirical legal scholars must 1) develop generalized theories, 2) infer multiple hypotheses from these …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

Unwarranted Fears Mask The Benefits Of Network Diversity: An Argument Against Mandating Network Neutrality, Elvis Stumbergs

ExpressO

The rapid development of the Internet has necessitated an update to Federal telecommunications laws. Recent Congressional efforts to enact such an update, however, have spawned a fiery debate over a somewhat nebulous concept: network neutrality. The debate concerns the way that Internet access providers handle the data traffic being sent over their networks. These providers would like the option to offer some of their customers, web site hosting companies and similar entities, additional services that would essentially result in these customers’ content loading faster, more reliably, or more securely than others not receiving such priority treatment. Yet, this proposed “diversity” …

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …