Legal Writing and Research Commons^™

The Meaning Of The Constitution And The Selection Of Judges, Harold See

Law Faculty Scholarship

In the ongoing debate over the best method for choosing judges, the focus has been on the perceived drawbacks of judicial election without commensurate consideration of either the advantages of popular elections or the disadvantages of the commission system-usually styled the "Missouri plan" or "merit selection." One such consideration is the means of defining the judicial power.

Voices On Innocence, Lucian E. Dervan, Richard A. Leo, Meghan J. Ryan, Valena Elizabeth Beety, Gregory M. Gilchrist, William W. Berry

Law Faculty Scholarship

In the summer of 2015, experts gathered from around the country to sit together and discuss one of the most pressing and important issues facing the American criminal justice system – innocence. Innocence is an issue that pervades various areas of research and influences numerous topics of discussion. What does innocence mean, particularly in a system that differentiates between innocence and acquittal at sentencing? What is the impact of innocence during plea bargaining? How should we respond to growing numbers of exonerations? What forces lead to the incarceration of innocents? Has an innocent person been put to death and, if …

Corporate Criminal Liability, Moral Culpability, And The Yates Memo, Lucian E. Dervan

Law Faculty Scholarship

This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo (2015) on corporate charging decisions and the …

Buckle Up: State Child Safety Restraint Laws Need To Be Strengthened To Better Protect Children, Ellen A. Black

Law Faculty Scholarship

This article reviews the history of child safety restraints and analyzes the relevant health agency recommendations to consider their accretive value in determining whether stronger child safety restraint laws should be enacted. Next, the article reviews the current state of law in the area of child safety restraints and addresses arguments against strengthening the current laws. Lastly, the article concludes that states should enact the proposed model act to ensure that this nation's children ride safely restrained.

Local, State, And Federal Responses To Stalking: Are Anti-Stalking Laws Effective?, Tracey Carter

Law Faculty Scholarship

Statistics show that there are currently 7.5 million victims of stalking in the United States each year. The year 2014 commemorated the 20th Anniversary since passage of the federal Violence Against Women Act of 1994 (“VAWA”) that was signed by President Bill Clinton on September 13, 1994. Passage of this Act marked a key transformation in our nation’s response to the crimes of domestic violence, sexual assault, and stalking. The VAWA was established to promote “collaboration among law enforcement, health care providers, nonprofit service groups, community leaders, and the private sector” to combat these crimes. In fact, the VAWA was …

Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon

Law Faculty Scholarship

The ongoing armoring of the nation’s coastlines with seawalls and bulkheads causes the inevitable destruction of miles of coastal wetlands. Armoring increases the rate of shoreline erosion and blocks the long term migration of wetlands inland, a process that will be necessary for coastal wetlands to survive sea level rise. Coastal armoring also reduces the habitat available to coastal species, and blocks access to the upper reaches of the beach for sea turtles and other species that depend on the beach for nesting. And yet, despite these well established and significant environmental harms, the United States Army Corps of Engineers …

Symposium Panel: Bringing Blurred Lines Into Focus, Loren E. Mulraine

Law Faculty Scholarship

Belmont Law Review Symposium: Bringing Blurred Lines into Focus, October 2015

Everything Old Is New Again: Will Narrow Networks Succeed Where Hmos Failed?, Deborah R. Farringer

Law Faculty Scholarship

As health insurers try to navigate the new limitations set forth under the ACA, including prohibitions on denying individuals with pre-existing conditions and limitations on the rating of patients, insurers are looking towards models that will enable them to control costs without access to their usual tools. What they have developed is not so much a new insurance model, but actually a concept that first arose during the rise of managed care; that is, limited provider networks utilized within health maintenance organizations (“HMOs”). These “new” insurance products, often referred to as narrow networks or high-performance networks, offer beneficiaries a more …

A Special Delivery: Litigating Pregnancy Accommodation Claims After The Supreme Court’S Decision In Young V. United Parcel Service, Inc., Lynn Ridgeway Zehrt

Law Faculty Scholarship

For over twenty years, the federal courts of appeals have been divided over the extent to which the Pregnancy Discrimination Act requires employers to offer light-duty or other work accommodations to pregnant employees. The division between circuits centers on the interpretation of the language in the second clause of the Pregnancy Discrimination Act mandating that employers “shall” treat pregnant employees “the same... as other persons... similar in their ability or inability to work.” Four circuits interpreted this clause to merely explain the first clause, thereby refusing to enforce any significant obligation on employers to accommodate pregnancy-related physical limitations, even when …

Fair Play Fair Pay: The Need For A Terrestrial Public Performance Right And General Copyright Reform, Loren E. Mulraine

Law Faculty Scholarship

Copyright is a unique species of the law, tethered in a very tangible way to what is largely an intangible: intellectual property. It should be no surprise then that any collection of laws governing property that can be literally created in a moment out of nothing but the mind of the creator, will ultimately have an eternal struggle keeping pace with that very thing it purports to govern. Historically, copyright law has been relegated to being the horse that is second to cross the finish line at the Kentucky Derby. The horse is indeed world class; however, it is simply …

First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.

Law Faculty Scholarship

Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey

Law Faculty Scholarship

In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that donot target specific religious beliefs or practices. However, Justice …

'White Collar Crime': Still Hazy After All These Years, Lucian E. Dervan, Ellen S. Podgor

Law Faculty Scholarship

With a seventy-five year history of sociological and later legal roots, the term “white collar crime” remains an ambiguous concept that academics, policy makers, law enforcement personnel and defense counsel are unable to adequately define. Yet the use of the term “white collar crime” skews statistical reporting and sentencing for this conduct. This Article provides a historical overview of its linear progression and then a methodology for a new architecture in examining this conduct. It separates statutes into clear-cut white collar offenses and hybrid statutory offenses, and then applies this approach with an empirical study that dissects cases prosecuted under …

Internal Investigations And The Evolving Fate Of Privilege, Lucian E. Dervan

Law Faculty Scholarship

In 1981, the United States Supreme Court delivered a landmark ruling in Upjohn Co. v. United States. The decision made clear that the protections afforded by the attorney-client privilege apply to internal corporate investigations. This piece examines the fundamental tenets of Upjohn, discusses some recent challenges to the applicability of privilege to materials gathered during internal investigations, and considers the manner in which the international nature of modern internal investigations adds complexity and uncertainty to the field.

Using The West Key Number System As A Data Collection And Coding Device For Empirical Legal Scholarship: Demonstrating The Method Via A Study Of Contract Interpretation, Joshua M. Silverstein

Law Faculty Scholarship

Empirical research is an increasingly important type of legal scholarship. Such research generally requires the collection and coding of large quantities of data. These tasks pose critical challenges for legal scholars. Most crucially, they are often resource-intensive. The primary purpose of this article is to explain how researchers can use the West Key Number System to dramatically streamline the process of data collection and coding. The article accomplishes this, in part, through a demonstration: it employs the Key Number System to conduct an empirical study of contract interpretation.

Contract interpretation is one of the most significant areas of commercial law. …

Podia And Pens: Dismantling The Two-Track System For Legal Research And Writing Faculty, Kristen K. Tiscione, Amy Vorenberg

Law Faculty Scholarship

At the 2015 AALS Annual Meeting, a panel was convened under this title to discuss whether separate tracks and lower status for legal research and writing (“LRW”) faculty make sense given the current demand for legal educators to better train students for practice. The participants included law professors, an associate dean, and a federal judge.2 Each panelist was asked to respond to questions about the “two-track” system—a shorthand phrase for the two tracks of employment at many law schools whereby full-time LRW faculty are treated differently than tenured and tenure-track faculty. The panelists represented differing views on the topic. This …

A Little Birdie Said, Seth C. Oranburg

Law Faculty Scholarship

Shareholders are organizing and mobilizing on new social media platforms like Twitter. This changes the dynamics of shareholder proxy contests in ways that favor shareholders over management. Disruptive technology may bring about a shareholder revolution, which may not be in shareholders’ best interests, at least from the perspective of shareholder wealth maximization, and it also has powerful implications for the future of corporate social responsibility.

Advising The President: The Growing Scope Of Executive Power To Protect America, Alberto R. Gonzales

Law Faculty Scholarship

The scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits …

The Due Process Conundrum: Using Matthews V. Eldridge As A Standard For Private Hospitals Under The Healthcare Quality Improvement Act, Amy L. Moore

Law Faculty Scholarship

This Article examines the procedural due process protections afforded to physicians under the Health Care Quality Improvement Act of 1986 (HCQIA), focusing on the statutory requirement of “adequate notice and hearing” in professional peer review proceedings. Although HCQIA was enacted to promote effective peer review and improve the quality of medical care by granting immunity to hospitals and review bodies, the statute conditions immunity on compliance with certain fairness standards. The Article identifies a doctrinal gap between the statute’s safe harbor provisions and the broader, undefined requirement of adequacy, noting that courts frequently resolve immunity questions at summary judgment under …

Fearful Asymmetry: How The Absence Of Public Participation In Section 7 Of The Esa Can Make The 'Best Available Science' Unavailable For Judicial Review, Travis Brandon

Law Faculty Scholarship

Recent empirical studies have shown that public participation is an essential part of the listing process of the Endangered Species Act (“ESA”) because it provides the wildlife agencies with valuable scientific information regarding candidate species and forces agencies to make politically unpopular decisions to protect species standing in the way of development interests. However, the crucial agency-forcing mechanism of public participation is lacking in the interagency consultation process in section 7 of the ESA, one of the most important provisions by which the ESA’s protections for listed species are enforced. This Article explains how the absence of public input through …

Sentencing The Wolf Of Wall Street: From Leniency To Uncertainty, Lucian E. Dervan

Law Faculty Scholarship

This Symposium Article, based on a presentation given by Professor Dervan at the 2014 Wayne Law Review Symposium entitled "Sentencing White Collar Defendants: How Much is Enough," examines the Jordan Belfort (“Wolf of Wall Street”) prosecution as a vehicle for analyzing sentencing in major white-collar criminal cases from the 1980s until today. In Part II, the Article examines the Belfort case and his relatively lenient prison sentence for engaging in a major fraud. This section goes on to examine additional cases from the 1980s, 1990s, and 2000s to consider the results of reforms aimed at “getting tough” on white-collar offenders. …

From Youth Sports To Collegiate Athletics To Professional Leagues: Is There Really 'Informed Consent' By Athletes Regarding Sports-Related Concussions?, Tracey Carter

Law Faculty Scholarship

Traumatic brain injury (TBI) is a major public health issue in the United States. A sports-related concussion is a form of TBI that can occur from participation in both contact and non-contact sports and recreational activities. The Centers for Disease Control and Prevention estimates that 1.6 to 3.8 million sports- and recreation-related concussions occur in the United States every year. This article emphasizes the serious impact of TBI on youth, collegiate, and professional athletes, explores whether athletes are really “informed” regarding sports-related concussions, and provides recommendations to better protect athletes and to decrease the number of sports-related concussions.

I Am My Brother's Keeper: How The Crossroads Of Entrepreneurship, Intellectual Property And Entertainment Can Be Used To Affect Social Justice, Loren E. Mulraine

Law Faculty Scholarship

Growing up in the Bronx, New York, our neighborhoods served as the fulcrum for the world we knew. Like many in my neighborhood, we were immigrants. My family had come to New York from the West Indies, for higher education, to make a better life and to contribute to a growing, energetic society. In many ways, the ultimate goal was to have a transformative effect upon our family tree. Many children, my sisters and I included, grew up in homes where we welcomed our parents’ siblings and their families – our aunts, uncles and cousins – to live with us …

Keeping Our Eyes On The Prize: Examining Minnesota As A Means For Assuring Achievement Of The 'Triple Aim' Under The Aca, Deborah R. Farringer

Law Faculty Scholarship

A little more than four years after enactment of the Patient Protection and Affordable Care Act of 2010 (“ACA”), daily headlines still abound on newspapers and websites across the country highlighting both successes and failures of the ACA. In analyzing those successes and failures, especially in the context of care delivery, it is important to take a step back to consider the stated goals of the ACA, which goals have their origins in a premise first proposed by Dr. Donald M. Berwick and the Institute for Healthcare Improvement (“IHI”) in 2006 referred to as the “Triple Aim.” The Triple Aim …

Defamation And The Government Employee: Redefining Who Constitutes A Public Official, Jeffrey Omar Usman

Law Faculty Scholarship

This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this …

Keep Out Fda: Food Manufacturers' Ability To Effectively Self-Regulate Front-Of-Package Food Labeling, Ellen A. Black

Law Faculty Scholarship

The headlines on any given day claim that the American "obesity epidemic" continues to worsen.' According to these headlines, Americans, both adults and children, are increasingly becoming more obese, are more likely to be diagnosed with diabetes, and will likely prematurely die due to this preventable disease. Numerous private industries, as well as the government, seek to rescue Americans from this crisis. As the obesity epidemic debate intensifies, the call for more government regulation correspondingly grows. There are critics, however, who question the legitimacy of this epidemic and the need for more regulation. For example, some well-known scholars opine that …

No Right At All: Putting Consular Notification In Its Rightful Place After Medellin, Alberto R. Gonzales, Amy L. Moore

Law Faculty Scholarship

This Article covers the history of consular notification and presentation in the U.S. federal and state courts and in the International Court of Justice. Article 36 of the Vienna Convention on Consular Relations provides that nation-states should notify detained foreign nationals of their right to contact their consulate about their detention. This Article argues that the U.S. Supreme Court, as matters of institutional responsibility and judicial economy, should have concluded that the Vienna Convention on Consular Relations does not contain an enforceable individual right. Moreover, no analog for this right has been found in American jurisprudence.

In Search Of Justice: An Examination Of The Appointments Of John G. Roberts And Samuel A. Alito To The U.S. Supreme Court And Their Impact On American Jurisprudence, Alberto R. Gonzales

Law Faculty Scholarship

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges …

Two Years Later And Counting: The Implications Of The Supreme Court's Taxing Power Decision On The Goals Of The Affordable Care Act, Alberto R. Gonzales, Donald B. Stuart

Law Faculty Scholarship

In 2012, in a highly anticipated decision, the United States Supreme Court upheld the constitutionality of a requirement that most Americans obtain health insurance or pay a monetary penalty.' The statute in question that contained this requirement, the Patient Protection and Affordable Care Act (Act or ACA), often labeled as "Obamacare," or the Affordable Care Act, was a monumental piece of legislation (over 900 pages) that was passed by Congress and signed into law by President Barack Obama in 2010. The Act represented a significant overhaul of the country's health care system and structure. The primary objectives of this legislation …

Menu Labeling: The Unintended Consequences To The Consumer, Ellen A. Black

Law Faculty Scholarship

Why are Americans, along with the rest of the most populous nations, more overweight than twenty or thirty years ago? Most nutritionists and scientists agree that the answer is complex and multifaceted, with genetics, exercise, and diet all playing at least a partial role. Americans, for the last thirty years, have been reportedly eating out at restaurants more frequently than they have been eating at home; as a result, the restaurant industry has been blamed, in part, for the rise in obesity, based upon the presumption that more calories are consumed at restaurants than at home. Yet determining the underlying …