Law Commons^™

A Model State Act To Authorize And Regulate Physician-Assisted Suicide, Charles H. Baron, Clyde Bergstresser, Dan W. Brock, Garrick F. Cole, Nancy S. Dorfman, Judith A. Johnson, Lowell E. Schnipper, James Vorenberg, Sidney H. Wanzer

Charles H. Baron

Despite laws in many states prohibiting assisted suicide, an unknown but significant number of people each year commit suicide with the aid of a physician. In recent years, the phenomenon of physician-assisted suicide has attracted greater attention as physicians have openly risked prosecution to shed light on the subject, advocates have raised a series of legal challenges to laws banning assisted suicide, and a federal judge has struck down the nation's first statute allowing physicians to assist patients in suicide. In this Article, nine authors from the fields of law, medicine, philosophy and economics propose a comprehensive statute to permit …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

Assuring "Detached But Passionate Investigation And Decision": The Role Of Guardians Ad Litem In Saikewicz-Type Cases, Charles Baron

Charles H. Baron

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of "proxy consent" question involved in that case required for its decision "the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created." This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's …

Fetal Research: The Question In The States, Charles H. Baron

Charles H. Baron

This article is based on a paper delivered at the Third National Symposium on Genetics and the Law in Boston, April 1984.

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

Weather Permitting: Incrementalism, Animus, And The Art (And Sometimes Artifice) In Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Jeremiah A Ho

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against …

Confucianism And Antitrust: China's Emerging Evolutionary Approach To Anti-Monopoly Law, Thomas J. Horton

Thomas J. Horton

In August, 2007, the People’s Republic of China, through its National People’s Congress, enacted its Anti-Monopoly Law, which took effect in August, 2008. This article discusses the historical, cultural, and philosophical values that have helped to shape and influence China’s current AML. Rather than following the United States and Europe, China appears to be charting its own course in interpreting and enforcing its competition laws. Based upon China’s history, culture, and Confucian ethics and morals, this article forecasts that China’s future AML enforcement will be based upon social, moral, and ethical considerations, as well as economic ones. This article concludes …

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of the American presidential system. …

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Cracking The Code: Amending Canon Law To Exclude Sexual Abuse Offenders From Roman Catholic Ordination, Hannah C. Dugan J.D.

Hannah C. Dugan J.D.

Abstract: In 2002, a public scandal broke in the United States revealing the depth of Roman Catholic clerical sex abuse, and exposing the breadth of failed episcopal response to victim complaints. Many civil, criminal, religious and bankruptcy court matters have been pursued to bring justice for victims and survivors. However, the Church’s Code of Canon Law, that lists specifically who may not be ordained, does not exclude sexual abuse offenders from holy orders. This article discusses legal and extra-legal remedies in the wake of the sexual abuse scandal, and argues for amending the Code of Canon Law so that the …

Voice Without Say: Why Capital-Managed Firms Aren’T (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuine employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision-making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the rarity of genuine …

Legal Mirrors Of Entrepreneurship, Mirit Eyal-Cohen

Mirit Eyal-Cohen

Small businesses are regarded the engine of the economy. But just what is a “small” business? Depending on where one looks in the law, the definitions vary and they differ from one section to another. Unfortunately, what these various size classifications fail to assess, are the policy considerations and the legislative intent for granting regulatory preferences to small concerns to begin with.

In the last century, the U.S. government has been cultivating one such policy of fiscal and economic growth. Consequently, Congress and private institutions have been acting to incentivize, support and reward entrepreneurship through the law in order to …

Overruling Precedent: "A Derelict In The Stream Of The Law", Michael Leroy

Michael H LeRoy

Will the Supreme Court overrule Hoffman Plastic Compounds v. N.L.R.B., 535 U.S. 137 (2002), its precedent that treats unlawful alien workers as criminals and denies them backpay for a violation of a labor law? More generally, what are the statistical indicators of a precedent that the Supreme Court overrules— and how well does Hoffman Plastic fit that profile? To answer these research questions, I analyze two unique databases— 128 federal and state rulings from 2002-2012 that involved Hoffman Plastic’s remedy issue, and a sample of 154 Supreme Court pairings of an overruled precedent, and the decision that explicitly …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

Expanding The Inner Circle: How Welfarist Norms Escape In-Groups, Alexander D. Jakle

Alexander D. Jakle

I explore the influence of social mechanisms by which welfarist norms come to be appropriate by those outside the social group for which they were developed, and how they lead to patterned deviance from the law. Drawing on literature from law and society, law and economics, political science, social theory, and other fields, I use original research from a qualitative study of amateur baseball players to analyze the interplay between norms, groups, and deviance. Relationships with agents is widespread, despite being against both NCAA Bylaws and most players economic incentives. To explain this seemingly irrational pattern of rule-breaking, I argue …

The Lies We Tell Ourselves: Confidence, Self-Deception, And Their Effects On "Rationality" And Deviance, Alexander D. Jakle

Alexander D. Jakle

Law and economics suggests that we behave in ways that maximize our preferences, but what if we are deceived about what we want or how best to get it? This article explores how the psychology of self-deception can be marshaled to explain unexpected patterns of law-breaking and deviance. Using original research from a qualitative case study of amateur NCAA baseball players, I examine the ways in which self-deception leads us to systematically reinterpret and process information, fundamentally changing how we weigh the costs and benefits associated with breaking rules. Our preferences are inextricably interwoven with our identities, and we go …

What's Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored.

This article reviews common characteristics of existing inheritance …

Present At The Creation: Reflections On The Early Years Of The National Association Of Corporate Directors, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation in any country. In the United States, the premier director membership organization is the National Association of Corporate Directors (NACD). Now over 36 years old, NACD plays a major role in fostering excellence in corporate governance in the United States and beyond. Over the past thirty-six years NACD has grown from a mere realization of the importance of corporate governance to become the only national membership …

What's Wrong With A Federal Inheritance Tax?, Wendy Gerzog

Wendy Gerzog

Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer tax system, but there are serious flaws with that idea. Those problems include: (1) different tax rates and exemptions based on the decedent’s relationship to the beneficiary; (2) the lack of a tax on lifetime gratuitous transfers, including gifts with retained interests or control; (3) the persistence of most current valuation distortion abuses; and (4) significantly decreased compliance rates and increased administrative costs inherent in a system that taxes transferees on transactions that may be largely unmonitored.

This article reviews common characteristics of existing inheritance …

Insider Trading Law In East Asia And Enforcement: Japan, China, Hong Kong And Taiwan Visite, Chien-Chung Lin

Chien-Chung Lin

No abstract provided.

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Lights, Camera, Arrest: The Stage Is Set For A Federal Resolution Of A Citizen's Right To Record The Police In Public, Taylor R. Robertson

Taylor R Robertson

Grab your cellphone, press the record button, and amaze your friends!

No advertisement like this exists in real life, of course, because the action is already universally automatic—it needs no encouragement or instruction. But aim the camera at the police and you could be arrested and face up to fifteen years in prison under some eavesdropping or wiretapping laws simply for recording the police in public speaking at volumes audible to any unassisted ear. While wiretapping laws were originally intended to protect citizens from the snooping detective, some states have effectively turned these laws into government protection from the watchful …

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

David S Caudill

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Social Capital: Friend Or Foe In The Lives Of Two Prominent Incarcerated Individuals, Froswa Booker-Drew

Froswa Booker-Drew

No abstract provided.

The Concept Of Objectivity In The Uk Supreme Court Through A Comparative Looking Glass, Vito Breda

Vito Breda

This essay reports on the result of hermeneutical research entitled Objectivity in the UK Judicial Discourse. The concept of objectivity generates a plurality of analysis. For instance, in legal theory, MacCormick suggests the possibility of an objective interpretation of cases. Objectivity in the UK Judicial Discourse focuses on the interpretation of the concept by common law judges. In particular, the project sought to map out the cluster of interpretations (and arguments derived therefrom) on the concept of objectivity by the House of Lords and the UK Supreme Court. The result of the study shows that within UK law there …

Evolving Christian Attitudes Towards Personal And National Self-Defense, David B. Kopel

David B Kopel

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the Article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The Article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual's duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries.

Disillusionment over World War I turned many Catholics and Protestants …

Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray

David C. Gray

In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

How Comprehensive Planning Makes Suburbia More Sprawling, Michael Lewyn

Michael E Lewyn

Many commentators associate comprehensive land use planning with smart growth- but in fact, municipal plans can be used to further sprawl as well as smart growth.