Law Commons^™

Privacy And The Limits Of History, Neil M. Richards

Scholarship@WashULaw

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim

Scholarship@WashULaw

Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit …

How Should We Study District Judge Decision-Making?, Pauline Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

Scholarship@WashULaw

Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district …

Kidney Transplantation: Only For The Well-To-Do?, Jennifer M. Smith

Campbell Law Review

No abstract provided.

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism, Thaddeus Mason Pope

Campbell Law Review

No abstract provided.

The 2009 Revision To The Phrma Code On Interactions With Healthcare Professionals: Challenges And Opportunities For The Pharmaceutical Industry In The Age Of Compliance, Howard L. Dorfman

Campbell Law Review

This Article will describe the basic tenets of the 2009 PhRMA Code, how the 2009 PhRMA Code has been relied upon by at least one state in crafting its own response to the industry-healthcare professional debate, and it will conclude with a brief overview of pending activity apart from the self-policing guidance of the 2009 PhRMA Code with an outlook on the future of the compliance debate.

A Primer On North Carolina And Federal Use Of Force Law: Trends In Fourth Amendment Doctrine, Qualified Immunity, And State Law Issues, J. Michael Mcguinness

Campbell Law Review

This Article analyzes recent trends and updates the status of use of force law under North Carolina and federal standards.

Why Affirmative Action Remains Essential In The Age Of Obama, Reginald T. Shuford

Campbell Law Review

No abstract provided.

The Hidden Dichotomy In The Law Of Morality, Justin P. Nichols

Campbell Law Review

This Comment will begin by exploring the dichotomy itself, and then carefully distinguishing civil and religious morality. The analysis will then examine Lawrence and clarify how the opinion affected the dichotomy. Next, this Comment will apply the post-Lawrence understanding of the rational basis test to several issues of concern raised by opponents of the decision. Finally, this Comment will speculate as to the possible implications of Lawrence for moral issues lying on the horizon.

Toward A Comprehensive Program For Regulating Vacant Or Abandoned Dwellings In North Carolina: The General Police Power, Minimum Housing Standards, And Vacant Property Registration, C. Tyler Mulligan

Campbell Law Review

Part I of this Article provides a brief introduction to North Carolina's experience thus far with the foreclosure crisis and introduces the broad array of statutorily granted tools local governments might employ to deal with vacant or abandoned dwellings in varying stages of neglect. Part II discusses the general police power that serves as the first line of defense against the decline of vacant or abandoned housing, as well as how that power is limited by state statutes governing minimum housing standards. Part III then turns to those minimum housing statutes to examine their operation and limitations. Part IV analyzes …

Putting Amotion In Motion: Removal Of An Elected Official By A Municipal Governing Body For Just Cause, Cathryn M. Little

Campbell Law Review

This Article will examine the development and application of North Carolina common law addressing the removal of an elected municipal official through the process of "amotion." Amotion is recognized as an "inherent power" of the governing body of a municipal corporation to remove an elected official for reasonable and just cause due to misconduct or unfitness to hold office.

Arresting Development: A Call For North Carolina To Expand Its Forensic Database By Collecting Dna From Felony Arrestees, John Maddux

Campbell Law Review

For nearly twenty years, state and federal law enforcement agencies have turned to DNA databases as a means of identifying offenders, generating leads in cold cases, and on occasion, exonerating the innocent. Naturally, the larger the database, the more likely it is that a new DNA profile entered into the system will generate a match. Currently, fifty states maintain DNA databases, and of those, forty-seven-including North Carolina-collect and store DNA profiles from all persons convicted of any felony offense. Statutes requiring the collection of DNA profiles from convicts are a positive step toward improving the database tools; however, by only …

The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …

No Future Without (Personal) Forgiveness: Reexamining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Scholarship@WashULaw

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Scholarship@WashULaw

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts …

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

The Sec In A Time Of Discontinuity., Joel Seligman

Scholarship@WashULaw

In Jack Coffee and Hillary Sale’s article, Redesigning the SEC: Does the Treasury Have a Better Idea?, the authors address the dominant reality today—that “[t]he natural superiority of the U.S. model for securities regulation is no longer an article of faith” and analyze whether the Department of the Treasury Blueprint provides a wiser structure of financial regulation.

Jim Cox in Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC similarly begins, “data bear witness to the fact that government agencies come and go,” but highlights the complexities of creating an international approach to accounting standards.

Judge Easterbrook begins …

Optimal Patent Jurisprudence, Scott Baker, Claudio Mezzetti

Scholarship@WashULaw

We model judicial learning about optimal patent policy. The court is infinitely lived; the plaintiff and defendant are short lived. Litigated cases provide the court with information about the optimal rule. Different cases provide different sorts of information. Opinions influence the stream of future cases likely to be litigated and, as a result, change the flow of information to the court. In structuring opinions, courts make decisions whether to learn fast or slow. We have three main results. First, patent law will stabilize even if the court places zero value on the "predictability" of legal rules. Second, path dependence of …

Lawyering In The Academy: The Intersection Of Academic Freedom And Professional Responsibility, Peter A. Joy

Scholarship@WashULaw

The legal academy has given little thought to how practicing law within law schools affects professional responsibilities and is different from representing clients in a traditional law firm or how notions of academic freedom affect lawyering in law schools. Yet repeated attempts to interfere with law clinic representation starkly illustrate how lawyering in the academy might be different, under notions of professional responsibility and academic freedom, from other lawyering or typical law teaching.

Scholarship on interference in clinical programs has focused primarily on the impropriety of interference on the institutional autonomy of law schools by those outside the university, such …

The C.A.P. Effect: Racial Profiling In The Ice Criminal Alien Program, Trevor George Gardner, Aarti Kohli

Scholarship@WashULaw

The goal of the Criminal Alien Program (CAP) is to improve safety by promoting federal-local partnerships to target serious criminal offenders for deportation. Indeed, the U.S. Congress has made clear that Immigration and Customs Enforcement (ICE) “should have no greater immigration enforcement priority than to remove deportable aliens with serious criminal histories from the United States…” The Warren Institute’s analysis of arrest data pursuant to an ICE-local partnership in Irving, Texas demonstrates that ICE is not following Congress’ mandate to focus resources on the deportation of immigrants with serious criminal histories.

This study also shows that immediately after Irving, Texas …

Judging The Judges, Stefanie A. Lindquist, Frank B. Cross

Scholarship@WashULaw

The evaluation of judges, especially circuit court judges, has commanded increased attention, with the quantitative analyses of Stephen Choi and Mitu Gulati. However, the proper dimensions for the evaluation of judges remains much disputed. Critics have challenged Choi & Gulati’s scales for measuring judicial quality but have offered little that is positive that would improve measurement. The critics make philosophical challenges to whether the measures truly capture the qualities of judging we should desire, but they offer no measurement tools to improve on Choi and Gulati.

We hope to advance the theoretical and empirical evaluation by incorporating different scales for …

Public Interest, Professional Bargains: Ethical Conflicts Between Lawyers And Professional Engineers, Elizabeth J. Hubertz

Scholarship@WashULaw

Environmental experts come from many fields, including biology, geosciences, ecology, chemistry, engineering, social science, and economics. Each discipline has its own set of norms, practices, ethics, guidelines, and procedures, which differ from those of the legal profession. Wherever the disciplines intersect, there is a potential for disagreement. This Article examines one such set of potential clashes — the conflict between a lawyer‘s duties of loyalty and confidentiality, and the engineer‘s paramount duty to the public health, safety, and welfare.

Cooperative Federalism Post-Schaffer: The Burden Of Proof And Preemption In Special Education, Lara Gelbwasser Freed

Cornell Law Faculty Publications

The Status Of Trespassers On Land, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Government Lawyers, Democracy, And The Rule Of Law, W. Bradley Wendel

Cornell Law Faculty Publications

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately …

Collision Course - Science, Law, And Regulation In The Emerging Science Of Low Dose Toxicity, Jody A. Roberts

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Tomorrow Today - Cellulosic Ethanol: How It's Done, Who's Getting It Done, And It's Environmental Impact, Vincent Barbera

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Tire Jockey Service, Inc. V. Commonwealth: If A Used Tired Falls Into Pennsylvania And No One Is There To Regulate It, Will The Courts Make A Sound, Michael D. Beck

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Eco-Terrorism And Piracy On The High Seas: Japanese Whaling And The Rights Of Private Groups To Enforce International Conservation Law In Neutral Waters, Joseph Elliott Roeschke

Villanova Environmental Law Journal (1991 - )

No abstract provided.