Law Commons^™

Frozen Ethics: Melting The Boundaries Between Medical Treatment And Organ Procurement, George J. Annas, Michael A. Grodin

Faculty Scholarship

When Renee Fox, medical sociologist and noted historian of organ transplantation, first learned of the proposal to use "non-heart-beating cadavers" as organ sources more than 25 years ago, she was appalled. She labeled the proposal "the most elaborately macabre scheme for obtaining organs that I have encountered," adding that "it borders on ghoulishness." She saw the procedure as "beyond the pale of the medically decent, morally allowable, and spiritually acceptable" (Fox 1993, 232). But medically decent has seldom gotten in the way of procuring organs for transplant, and we now seem to be on the verge of adopting an "uncontrolled" …

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

The Prophylactic Fifth Amendment, Tracey Maclin

Faculty Scholarship

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …

Measuring Scholarly Impact: A Guide For Law School Administrators And Legal Scholars, Gary M. Lucas Jr

Faculty Scholarship

The author intends for this Essay to serve as a guide for law deans and legal scholars interested in measuring the impact of legal scholarship. In addition, university administrators should find it helpful for comparing the impact of their own law faculty’s scholarship with the scholarship of law faculties at other universities. The primary obstacle to such comparisons is a dearth of publicly available information. To that end, the Essay recommends that each law school create a Google Scholar profile for its faculty and explains the procedures for doing so. By acting on this recommendation, administrators would dramatically improve our …

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

Evicted: The Socio-Legal Case For The Right To Housing, Lisa T. Alexander

Faculty Scholarship

Matthew Desmond's Evicted: Poverty and Profit in the American City is a triumphant work that provides the missing socio-legal data needed to prove why America should recognize housing as a human right. Desmond's masterful study of the effect of evictions on Milwaukee's urban poor in the wake of the 2008 U.S. housing crisis humanizes the evicted, and their landlords, through rich and detailed ethnographies. His intimate portrayals teach Evicted's readers about the agonizingly difficult choices that low-income, unsubsidized tenants must make in the private rental market. Evicted also reveals the contradictions between "law on the books" and "law-in-action." Its most …

San Francisco Chronicle Interviews Joshua Kastenberg About President Trump's Missle Strike On Syrian Airfield (Experts See Trump Strike As Illegal Unless U.S. Under Threat Or U.N. Authorizes), Joshua E. Kastenberg

Faculty Scholarship

No abstract provided.

What The Future Holds: The Changing Landscape Of Federal Indian Policy, Kevin Washburn

Faculty Scholarship

Since first described by Chief Justice John Marshall, the United States has been deemed to have a moral and legal “trust responsibility” to the American Indian tribal nations that gave way so that the United States could exist. For nearly two centuries, the trust responsibility reflected a paternalistic view toward Indian tribes. As the United States has developed a more enlightened policy characterized by greater respect for “tribal self-governance,” tribal governments have experienced a renaissance. Federal policy has moved away from federal control and toward tribal empowerment. As a result, the trust responsibility’s paternalistic features have come to seem anachronistic, …

Will Focusing On Men's Moral Calculus Make Abortion Less "About" Gender?, Linda C. Mcclain

Faculty Scholarship

Decades ago, feminist leader Gloria Steinem quipped that, “if men could get pregnant, abortion would be a sacrament.” As President Trump reinstates restrictions on women’s reproductive rights that the Obama Administration lifted (such as the “global gag rule”), the visual imagery of Trump signing executive orders while surrounded by an audience of white men raises – once again – the question of how gender shapes the abortion issue. In the recent unsuccessful Republican effort to repeal “Obamacare,” when Kansas Senator Pat Roberts was asked whether he supported removing the mandate that insurance companies cover “essential health benefits” such as maternity …

Gender As A Variable In Natural-Language Processing: Ethical Considerations, Brian N. Larson

Faculty Scholarship

Researchers and practitioners in naturallanguage processing (NLP) and related fields should attend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This paper discusses theoretical and ethical frameworks for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

Breaking Bad Briefs, Heidi K. Brown

Faculty Scholarship

No abstract provided.

"No Shots, No School, No Kidding": The Legal Profession Needs A Vaccine To Ensure Professionalism, Debra Curtis

Faculty Scholarship

No abstract provided.

Being Part Of The "Home Team" : Perceptions Of Professional Interactions With Outsider Attorneys., Todd A. Collins, Tao L. Dumas, Laura P. Moyer

Faculty Scholarship

Understanding how attorneys’ perceptions of “insider” and “outsider” status affect negotiations is of both theoretical and practical importance for understanding the judicial system. We utilize a comprehensive survey of attorneys from one state to explore views of trustworthiness and negotiations. Overall, as attorneys become more embedded in their in-group, they increasingly report lower trust levels and less effective negotiations with outsiders. These relationships do vary somewhat by the scope and location of the attorney’s practice. Our findings provide insight into one possible causal mechanism underlying the “repeat player” advantage; they also suggest new directions for research on case outcomes.

The Practice And Tax Consequences Of Nonqualified Deferred Compensation, David I. Walker

Faculty Scholarship

Although nonqualified deferred compensation plans lack explicit tax preferences afforded qualified plans, it is well understood that nonqualified deferred compensation results in a joint tax advantage when employers earn a higher after‐tax return on deferred sums than employees could do on their own. Several commentators have proposed tax reform aimed at leveling the playing field between cash and nonqualified deferred compensation, but reform would not be easy or straightforward. This Article investigates nonqualified deferred compensation practices and shows that joint tax minimization often takes a backseat to accounting priorities and participant diversification concerns. In practice, the largest source of joint …

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Faculty Scholarship

If you ask legal ethics scholars what they remember about Louis D. Brandeis's judicial confirmation hearings, most would point to the manner in which he responded to questions about his representation of persons with perceived conflicts of interest. Louis Brandeis responded to challenges by stating that he was "counsel for the situation. Some use this comment when examining problems associated with a single lawyer representing multiple clients in the same transaction. Others believe that Brandeis may have been referring to a type of intermediary role in which lawyers attempt to adjust the rights and interests of multiple clients with potentially …

Informed Consent: Charade Or Choice, George J. Annas

Faculty Scholarship

The physicians of ancient Greece valued conversation with their patients. Conversation, however, did not apply to slaves, whose minds and opinions did not matter. More than 2000 years later, slavery has been abolished and the law has joined ethics in setting standards for the doctor-patient relationship. The most important doctrine, in both medical ethics and health law, is the doctrine of informed consent (better termed "informed choice"), including its corollary, the right to refuse treatment. Today this doctrine is under attack. The attack is direct from business models that see genuine doctor-patient conversations as inefficient (and a waste of time), …

The Patently Unexceptional Venue Statute, Paul Gugliuzza, Megan M. La Belle

Faculty Scholarship

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics …

Too Vast To Succeed, Miriam Baer

Faculty Scholarship

No abstract provided.

The Domain Of Torts, Alex Stein

Faculty Scholarship

No abstract provided.

Private Rights And Private Wrongs, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Purposive Loyalty, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Anchoring More Than Babies: Children's Rights After Obergefell V. Hodges, Susan Hazeldean

Faculty Scholarship

No abstract provided.

The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan

Faculty Scholarship

The following is a law review interview with Professor Srividhya Ragavan on the issues in interpretation of data exclusivity provisions under the TRIPS Agreement, and the impact of data exclusivity on generic drugs.

Gateway Crimes, Murat C. Mungan

Faculty Scholarship

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful drugs. This Article presents a theory of “gateway crimes,” which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes

Faculty Scholarship

The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had …

Recoupment Of Pension Overpayments: Equitable Liens And Meaningful Reform After Montanile, Maria O'Brien, Jeanne Medeiros

Faculty Scholarship

This short paper reviews the current state of the law governing recoupment actions for defined benefit ERISA plans and focuses in particular on actions against retirees who are without fault for the overpayment. The paper argues that the current practices of many plans which focus on recovering overpayments without taking the consequences to the retiree into account are not required by either ERISA or the IRS. The practices which include ceasing all pension payments, huge cuts in payout amounts and unlimited reach back even in cases where the plan fiduciary has clearly breached its duty to participants, cause tremendous harm …

Regulating The Packaged Water Industry In Africa: Challenges And Recommendations, Jessica Vapnek, Ashley R. Williams

Faculty Scholarship

No abstract provided.

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

Payroll Tax & The Blockchain, Richard Thompson Ainsworth, Ville Viitasaari

Faculty Scholarship

Bitcoin is an application that runs on blockchain technology. Blockchain is a foundational technology that is bringing in the second era of the Internet – the era where value can be transferred, rather than just information.

Blockchain is developing along a four-stage path similar to that which TCP/IP took. Both are foundational technologies. TCP/IP brought the Internet, and eventually brought significant (transformational) technological changes in business like Amazon.com and Skype. These are changes that could not have been forecast at the beginning of the Internet age.

Blockchain is an immutable distributed ledger. It replaces the inefficient use of multiple centralized …