Issue 1 Issue 2

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Volume 40, Issue 1
Fall 2006

Articles

Just Say “No Fishing”: The Lure of Metaphor
Elizabeth G. Thornburg
abstract

Protecting Abused, Neglected, and Abandoned Children: A Proposal for Provisional Out-of-State Kinship Placements Pursuant to the Interstate Compact on the Placement of Children
John C. Lore III
abstract

Function Over Form: Reviving the Criminal Jury’s Historical Role as a Sentencing Body
Chris Kemmitt
abstract

Notes

The NSA Domestic Surveillance Program: An Analysis of Congressional Oversight During an Era of One-Party Rule
Tara M. Sugiyama
Marisa Perry

abstract

A Tale of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity and Federal Preemption Doctrines Preventing States’ Enforcement of Campagn Contribution Regulations on Indian Tribes
Paul Porter
abstract

 


Volume 40, Issue 2
Winter 2007

Articles

Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery
Lonny Sheinkopf Hoffman

abstract

The Moral Hazard Problem with Privitizing Public Enforcement: The Case of Pharmaceutical Fraud
Dayna Bowen Matthew
abstract

Emergency Federalism: Calling on the States in Perilous Times
Adam M. Giuliano
abstract

Note

The Choice to Limit Choice: Using Psychiatric Advance Directives to Manage the Effects of Mental Illness and Support Self-Responsibility
Breanne M. Sheetz
abstract

 


Abstracts


Volume 40, Issue 1
Fall 2006


Just Say “No Fishing”: The Lure of Metaphor
Elizabeth G. Thornburg

The phrase “fishing expedition” is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court’s attitude toward the issue or claim in a lawsuit.

This Article begins by tracing the development of the “fishing expedition” metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use of the metaphor have long been rejected. The drafters of the Federal Rules of Civil Procedure tried to overcome the metaphor. Nevertheless, in contemporary cases the prohibition of “fishing” is omnipresent.

In an overwhelming proportion of modern cases, it is plaintiffs who are said to be “fishing,” and the metaphor’s concentration in certain types of cases reflects and reinforces an anti-plaintiff bias. The Article concludes by suggesting that we reject the fishing metaphor. It has been trite for more than two hundred years. More important, the fishing metaphor may camouflage reasoning that violates the letter or spirit of the Federal Rules of Civil Procedure.


Protecting Abused, Neglected, and Abandoned Children: A Proposal For Provisional Out-of-State Kinship Placements Pursuant To The Interstate Compact on The Placement of Children
John C. Lore III

The Interstate Compact on the Placement of Children deals with the interstate placement of abused, neglected and abandoned children. This article addresses the critical need for reform of the Interstate Compact and attempts to tackle its most serious flaw—the lack of a provisional placement for children awaiting approval of out-of-state kinship placements. The recently enacted Safe and Timely Interstate Placement of Foster Children Act of 2006 (the “Act”) is seriously flawed to the detriment of one of our country’s most vulnerable groups and the very population it is designed to protect—children who have been abused, neglected and abandoned. This article criticizes the Act and other current reform efforts and proposes a provisional placement system that would allow children to be immediately placed with family members across state lines. The implementation of a provisional placement will: (1) encourage many courts who are currently ignoring the mandates of the Interstate Compact to comply with its provisions; (2) minimize the trauma associated with being separated from a biological parent; (3) enhance the likelihood that siblings can remain together while in foster placement; (4) decrease the overall number of placements to which a child is subjected; and (5) free up scarce traditional foster placements for other child placements.


Function Over Form: Reviving the Criminal Jury’s Historical Role as a Sentencing Body
Chris Kemmitt

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the “ancient guarantee” articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to preserve by focusing exclusively on the criminal jury’s formal aspects and ignoring its long-standing historical function as a quasi-sentencing body. The author argues that both the criminal jury known to the Founders and its English antecedent were, at heart, sentencing bodies and that this sentencing function was essential to the Sixth Amendment protections promised to criminal defendants. By recasting the jury in the mold of simple fact-finder, the modern Court has hindered the jury’s ability to interpose a body of citizens between the government and the accused, leaving the accused without adequate protection against prosecutorial overreaching and the various other forms of government oppression with which the Founders were concerned. The article concludes with an argument that this evisceration of the Sixth Amendment could be remedied, at least in large part, by informing juries of the sentencing consequences of their actions. This solution would not only serve to reinforce the various protections that the jury system was intended to confer upon criminal defendants, but would create a trial dynamic which more closely adheres to the archetype endorsed by the Founders.


The NSA Domestic Surveillance Program: An Analysis of Congressional Oversight During an Era of One-Party Rule
Tara M. Sugiyama
Marisa Perry

On December 16, 2005, the New York Times sounded a fire alarm when it revealed that, in response to the September 11, 2001 attacks, President George W. Bush had issued a secret executive order permitting the National Security Agency (NSA) to conduct warrantless surveillance on individuals to unearth nascent terrorist activity. Congress responded to the disclosure of the NSA domestic surveillance program largely by shirking its oversight duties. This Note argues that when a single party controls both the executive and the legislative branches, the fire-alarm model fails to provide sufficient congressional oversight. Short of future elections altering the balance of power, this Note argues that Congress should seek new methods that readily engage bipartisan support and judicial review to oversee secret executive programs more effectively.


A Tale of Conflicting Sovereignties: The Case Against Tribal Sovereign Immunity and Federal Preemption Doctrines Preventing States’ Enforcement of Campaign Contribution Regulations on Indian Tribes
Paul Porter

This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law, and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting the laws. States also enjoy rights arising from the text of the U.S. Constitution under the Tenth Amendment and the Guaranty Clause, which courts should recognize to permit states to regulate tribes in the context of state campaign finance laws.


Volume 40, Issue 2
Winter 2007


Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery
Lonny Sheinkopf Hoffman

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another. The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Along with a lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or by those most closely involved in civil procedural reform to gather empirical evidence to determine how important the right to take presuit investigatory discovery is to the institution and maintenance of civil suits. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state’s presuit discovery rule: one out of two lawyer and judge respondents reported at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately sixty percent of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining forty percent of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements for bringing suit, as well as the pull of practical considerations, may plausibly explain the use of the state’s presuit discovery rule. Read in this manner, the empirical evidence suggests that an important relationship exists between access to information and access to justice.


The Moral Hazard Problem With Privatization of Public Enforcement:
The Case of Pharmaceutical Fraud
Dayna Bowen Matthew

This Article takes a law and economics approach to exploring some of the costs that arise when governments rely on private enforcement to accomplish the goals of public law. The analysis focuses on qui tam enforcement under the Civil False Claims Act, because a remarkable body of empirical data demonstrates the expansive role private qui tam relators are playing in enforcing Medicare and Medicaid fraud and abuse laws. The Article further focuses on the application of these laws to the pharmaceutical industry. This focus is enlightening because the Government, as well as private enforcers have recently targeted this industry so that emerging legal trends in private enforcement are readily evident. The economic concept of moral hazard—a well-recognized theory that a person takes more risks and exercises less care when insured than she would if uninsured—is applied to reconceptualize the costs and benefits of private enforcement. These costs are most dramatic when, as in the case of pharmaceutical fraud, the government overwhelmingly cedes to private enforcers its responsibility to protect the social good. This phenomenon is called the “privatization” of public enforcement. The analysis demonstrates a fundamental divergence between private and public incentives in False Claims Act prosecutions. The availability of private enforcers creates significant opportunities for public prosecutors to overenforce. Moreover, the reduction in short-term risk causes Government prosecutors to reduce the care that typically controls their exercise of prosecutorial discretion. The explanatory power of the moral hazard analysis is borne out by a review of case law that demonstrates private enforcement patterns that significantly depart from the public goals of federal anti-fraud law. The Article concludes by proposing legislative language that would reform the qui tam statute, and bring public and private enforcement goals into alignment.


Emergency Federalism: Calling on the States in Perilous Times
Adam M. Giuliano

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the “War on Terror” and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of ‘emergency federalism.’ The author argues that the Framers consciously retained federalism in times of threat and conflict analogous to today’s challenges. He finds that, relative to the national authority, the scope of states’ interests wax and wane depending upon the severity of the threat and the territorial context, though in no instance are they completely extinguished. Giuliano shows that this design reflects a judgment, written into the Constitution, that emergency federalism enhances both security and liberty relative to a more unilateral approach. He then illustrates how the experience of September 11, the national response since that date, and Hurricane Katrina together indicate that increasing the states’ role should, in practice, promote both security and liberty. Having described emergency federalism and identified its potential advantages, the Article concludes by suggesting possible legal and policy reforms, including those based on the conclusion that the National Guard is constitutionally unstable as currently constituted.


The Choice to Limit Choice: Using Psychiatric Advance Directives to Manage the Effects of Mental Illness and Support Self-Responsibility
Breanne M. Sheetz

Psychiatric advance directives are a valuable tool for individuals with mental illnesses. Ulysses directives, in particular, allow individuals to bind themselves to treatment in advance of needing it for the purpose of overcoming illness-induced refusals. This Note evaluates the effectiveness of state advance directive statutes in three areas that are especially important for Ulysses directives: defining competency to execute, activate, and revoke directives; waiving the constitutional right to refuse treatment; and encouraging provider compliance. This Note ultimately advocates for other states to adopt provisions similar to a Washington State statute. The Washington statute authorizes Ulysses directives by allowing advance consent to treatment, establishing a mechanism for overriding refusals, and permitting irrevocability, but it also provides flexibility so that individuals can craft a personalized plan for their needs.