View our previous issues.
Articles
The Uniform Probate Code’s Elective Share: Time for a Reassessment
Lawrence W. Waggoner
go to abstractThree Steps and You’re Out: The Misuse of the Sequential Evaluation Process in Child SSI Disability Determinations
Frank S. Bloch
go to abstractMain Street Multidisciplinary Practice Firms: Laboratories for the Future
Susan Poser
go to abstractReflections on Augusta: Judicial, Legislative and Economic Approaches to Private Race and Gender Consciousness
Scott R. Rosner
go to abstractNotes
Beyond the Business Judgment Rule: Protecting Bidder Firm Shareholders From Value-Reducing Acquisitions
Ryan Houseal
go to abstractExecuting the Laws or Executing an Agenda: Usurpation of Statutory and Constitutional Rights by the Department of Justice
Christopher C. Sabis
go to abstract
Volume 37, Issue 2
Winter 2004
Articles
“Go and Sin No More”: The Constitutionality of Governmentally Funded Faith-Based Prison Units
Lynn S. Branham
go to abstractVanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?
Steve P. Calandrillo
go to abstractThe Foggy Road for Evaluating Punitive Damages: Lifting the Haze from the BMW/State Farm Guideposts
Steve L. Chanenson
John Y. Gotanda
go to abstractJudges as Film Critics: New Approaches to Filmic Evidence
Jessica M. Silbey
go to abstract
NotesFederalism and Foreign Affairs: How to Remedy Violations of the Vienna Convention and Obey the U.S. Constitution, Too
Joshua A. Brook
go to abstractDemocratizing the American Dream: The Role of a Regional Housing Legislature in the Production of Affordable Housing
Thomas A. Brown
go to abstract
Volume 37, Issue 3
Spring 2004
Articles
A Tribute to Ruth G. Blumrosen
Evan H. Caminker
Intentional Job Discrimination—New Tools for Our Oldest Problem
Alfred W. Blumrosen
Ruth G. Blumrosen
go to abstractHearing the Danger of an Armed Felon—Allowing for a Detention Hearing Under the Bail Reform Act for Those Who Unlawfully Possess Firearms
Matthew S. Miner
go to abstractThe Responsible Thing to Do About “Responsible Party” Provisions in Nursing Home Agreements: A Proposal for Change on Three Fronts
Katherine C. Pearson
go to abstractTo Elect or Not to Elect: A Case Study of Judicial Selection in New York City 1977–2002
Steven Zeidman
go to abstract
NotesBalancing the Demands of the Workplace with the Needs of the Modern Family: Expanding Family and Medical Leave to Protect Domestic Partners
Kimberly Menashe Glassman
go to abstractLiberty, Justice, and Insurance for All: Re-Imagining the Employment-Based Health Insurance System
Carolyn V. Juárez
go to abstractWhen Nice Guys Finish First: The Evolution of Cooperation, The Study of Law, and the Ordering of Legal Regimes
Neel P. Parekh
go to abstract
Volume 37, Issue 4
Spring 2004
Articles
Campaign Finance Reform and the Social Inequality Paradox
Yoav Dotan
go to abstractThe Higher Calling: Regulation of Lawyers Post-Enron
Keith R. Fisher
go to abstractFoster Care Placement: Reducing the Risk of Sibling Incest
David J. Herring
go to abstract
Notes
Two Standards of Competency Are Better Than One: Why Some Defendants Who Are Not Competent to Stand Trial Should be Permitted to Plead Guilty
Jason R. Marshall
go to abstractA Whole New Game: Recognizing the Changing Complexion of Indian Gaming by Removing the Governors Veto for Gaming on “After-Acquired Lands”
Brian P. McClatchey
go to abstractTribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation
Amy Radon
go to abstract
ABSTRACTS
Volume 37, Issue 1
Fall 2003
The Uniform Probate Code’s Elective Share: Time for a Reassessment
Lawrence W. WaggonerIn this Article, Professor Waggoner proposes reforms to the Uniform Probate Code’s (UPC) treatment of the elective share of the surviving spouse. First, the Article recommends that the UPC adopt a form of presentation that more transparently reflects the normative theories and empirical assumptions underlying the UPC’s elective share framework. Second, the Article presents demographic data suggesting that the UPC’s current elective share approximation schedule may be inappropriate for a sizable faction of married couples, those remarrying following widowhood. Finally, the Article proposes two substantive revisions to the UPC’s election share framework-the first proposal is to lengthen the approximation schedule; the second is to offer enacting states a deferred community property al-ternative.
Three Steps and You’re Out: The Misuse of the Sequential Evaluation Process in Child SSI Disability Determinations
Frank S. BlochThe federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court’s decision, and shows how the “sequential evaluation process,” which has been useful for adjudicating adult disability claims, has been a counterproductive force in the child’s SSI program. It then suggests how the Social Security Administration might meet the program’s goals more effectively by break-ing with the sequential evaluation model and replacing it with a unique disability determination process for children.
Main Street Multidisciplinary Practice Firms: Laboratories for the Future
Susan PoserThis Article examines the debate over multidisciplinary practice in the wake of the collapse of Enron and Arthur Andersen. Part I addresses the history of the scholarly debate about multidisciplinary practice in the United States. It discusses the focus on large multidisciplinary firms, feared threats to independent professional judgment, and the current rule concerning lawyers and multidisciplinary practice.
Part II examines the reasons for allowing multidisciplinary practice. The author argues that client demand, lawyer demand, and policy reasons all provide valid reasons for permitting “one-stop” shopping. Part II also discusses existing forms of multidisciplinary practice. The author argues that the methods used by those groups in dealing with ethical and professional considerations indicate that small-scale, or “Main Street” multidisciplinary firms can provide improved service to cli-ents without endangering the legal profession.
In Part III, Professor Poser proposes a solution: permitting small-scale multidisciplinary practice, on a state-by-state basis. The author argues that permitting such firms would meet client demand for improved, integrated service, while also allowing state bar associations to determine if larger-scale multidisciplinary practice is feasible, based on the experience of smaller firms.
Reflections on Augusta: Judicial, Legislative and Economic Approaches to Private Race and Gender Consciousness
Scott R. RosnerIn light of the recent controversy surrounding Augusta National Golf Club’s exclusionary membership policy, this Article highlights the myriad incentives and disincentives that Augusta and similar clubs have for reforming such policies. The author acknowledges the economic importance of club membership in many business communities and addresses the extent to which club members’ claims of rights of privacy and free association are valid. The Article also considers the potential of judicial action in promoting the adoption of more inclusive membership policy; the state action doctrine and the First Amendment right to freedom of association are discussed as frameworks under which litigants may potentially bring claims against clubs and the author assesses the likelihood of success under each.
This Article next addresses the possibility of using existing legislation to prohibit or discourage exclusionary membership policies. Though he finds that the federal legislation on the books (Title II of the Civil Rights Act) falls short as a tool for combating discrimination, the author finds potential in some states’ civil rights acts. The author also outlines the probable arguments plaintiffs and defendants would make were a claim brought against an exclusionary club.
Finally, this Article addresses the potential for new federal or state legislation to combat this type of discrimination, the efficacy of denying liquor licenses and property tax exemptions to exclusionary clubs, and the potential normative effect that could be realized were high-profile athletes, professional tours, concerned club members, and business communities to make their disapproval of exclusionary policies heard.
Beyond the Business Judgment Rule: Protecting Bidder Firm Shareholders From Value-Reducing Acquisitions
Ryan HousealDuring the takeover transactions of the 1980s, bidder firms paid target firm shareholders average premiums of approximately 50% for their shares. Did the sizable premiums paid to target firm shareholders during the 1980s reflect post-takeover improvement in the target’s performance? Or were the premiums a result of the mismanagement of the bidder firms’ assets?
The answer will help determine whether additional legal mechanisms should be established to protect bidder firm shareholders from the threat of management’s consummation of value reducing acquisitions. Accordingly, this Note examines various studies which attempt to identify the source of the premiums paid to target firm shareholders. It concludes that additional protection for bidder firm shareholders is not necessary. The studies examined fail to demonstrate that premiums paid to target shareholders stem from mismanagement rather than from efficiency gains. Moreover, adequate mechanisms already exist to protect the economic interests of bidder firm shareholders.
Executing the Laws or Executing an Agenda: Usurpation of Statutory and Constitutional Rights by the Department of Justice
Christopher C. SabisThe Department of Justice (DOJ) can compel individuals and entities to sacrifice their constitutional or statutory rights. The DOJ can do so through brute political force, settlements and consent decrees, selective statutory enforcement, and prosecutions that coerce future actors not to pursue goals contrary to the policy desires of the executive branch. The current regime provides few constraints on the DOJ's ability to abuse its legal authority to achieve political objectives. This unbridled power jeopardizes the rights of both opposing and third parties.
This Note examines, in a bipartisan manner, the methods the Justice Department employs that deprive opponents or third parties of statutory or constitutional rights. It weighs the need for efficient law enforcement against the government’s duty to protect individual and group liberties. The Note concludes that the current legal checks on DOJ power are insufficient. Congress should continue its present system of legislative policing and pass a modified version of the Tunney Act to limit DOJ abuses beyond the antitrust field.
Volume 37, Issue 2
Winter 2004
“Go and Sin No More”: The Constitutionality of Governmentally Funded Faith-Based Prison Units
Lynn S. BranhamThis Article discusses faith-based prison programs that immerse prisoners living in residential units within a prison in a religious atmosphere. Part One analyzes the constitutionality of these programs under the Establishment Clause of the First Amendment. It notes that state action in the prison context receives more deference from courts than outside the prison context, and that prisoners’ constitutional rights are more constricted than free persons’. Part I proceeds to analyze the constitutionality of faith immersion programs in prisons, in light of the Supreme Court’s precedents dealing with prisoners’ rights and the Establishment Clause. States can defend immersion programs on the grounds that these programs are reasonably related to several important penological objectives, including the interests in reducing recidivism rates, protecting institutional security, promoting the aims of restorative justice, and accommodating inmates’ religious needs. In addition, the immersion programs can be constructed in ways that meet the “voluntariness” and “neutrality” requirements subsumed within the Establishment Clause.
Part II of this Article discusses how religious immersion programs in prison can best be structured to survive First Amendment challenges. Part II proposes several important features of an immersion program that will likely enable it to survive or avoid Establishment Clause challenges: prisoners must be fully informed about the nature and requirements of an immersion program before they enter it; prisoners must be allowed to freely chose whether or not to enter such a program, and should not face a penalty either for deciding not to enter the program or for attempting to exit the program; prisons must adopt policies and training regimens designed to ensure that immersion programs continue to comply with the commands of the Establishment Clause; prisons must not allow conditions in a faith-based section of a prison to diverge too widely from conditions in sections of the prison with a comparable security level; and prison officials ought to allow the religious aspects of an immersion program to be conducted largely by individuals from the private sector, rather than government employees. Part II concludes that, properly constructed, immersion programs hold substantial promise to advance penological objectives while surviving constitutional challenges.
Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children?
Steve P. CalandrilloVaccinations against life-threatening diseases are one of the greatest public health achievements in history. Literally millions of premature deaths have been pre-vented, and countless more children have been saved from disfiguring illness. While vaccinations carry unavoidable risks, the medical, social and economic benefits they confer have led all fifty states to enact compulsory childhood vaccina-tion laws to stop the spread of preventable diseases. Today, however, vaccines are becoming a victim of their success—many individuals have never witnessed the debilitating diseases that vaccines protect against, allowing complacency toward immunization requirements to build. Antivaccination sentiment is growing fast in the United States, in large part due to the controversial and hotly disputed link between immunizations and autism. The internet worsens fears regarding vaccination safety, as at least a dozen websites publish alarming information about the risks of vaccines. Increasing numbers of parents are refusing immunizations for their children and seeking legally sanctioned exemptions instead, apparently fearing vaccines more than the underlying diseases that they protect against. A variety of factors are at play: religious and philosophical beliefs, free-dom and individualism, misinformation about risk, and overperception of risk.
State legislatures and health departments now face a difficult challenge: respecting individual rights and freedoms while also safeguarding the public welfare. Nearly all states allow vaccination exemptions for religious reasons and a growing number provide “philosophical” opt-outs as well. However, in all but a handful of jurisdictions, neither objection is seriously documented or verified. Often, the law requires a parent to do no more than simply check a box indicating she does not wish her child to receive immunizations. The problem is exacerbated by financial incentives schools have to encourage students to opt out of vaccinations. The rise in parents opting out has caused the AMA grave concern, with many experts de-crying the rise of so-called “exemptions of convenience.” In some areas, nearly one out of five children have not received their recommended vaccines. The consequences are serious not only for those unprotected children, but for the rest of society as well. “Herd immunity” is threatened as more and more parents free ride off of the community’s dwindling immunity, and outbreaks of diseases thought to have been conquered have already occurred. Lawsuits against vaccine manufacturers threaten them with bankruptcy, costs are being externalized onto the healthcare and legal systems, and vulnerable populations are suffering harm or even death. In the interests of social welfare, state legislatures and health departments should consider methods to ensure that the exemption process is carefully tailored to prevent check-the-box opt-outs of convenience, while still allowing exemptions for those with earnest and informed convictions or medical reasons.
The Foggy Road for Evaluating Punitive Damages: Lifting the Haze from the BMW/State Farm Guideposts
Steven L. Chanenson
John Y. GotandaIn this Article, Professors Chanenson and Gotanda propose that courts treat com-parable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of puni-tive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and method-ology for review of such awards, the authors propose a greater reliance on the third guidepost of State Farm, comparison with legislative fines for comparable mis-conduct. In particular, the authors propose that the highest comparable fine should be the presumptive constitutional limit on a punitive damage award. Such an approach would give lower courts clear and workable guidance for review of punitive damage awards, while also providing civil defendants with fair notice of potential awards and reinforcing the proposition that important lawmaking au-thority belongs in the hands of state legislatures.
Judges as Film Critics: New Approaches To Filmic Evidence
Jessica M. SilbeyThis Article exposes internal contradictions in case law concerning the use and ad-missibility of film as evidence. Based on a review of more than ninety state and federal cases dating from 1923 to the present, the Article explains how the source of these contradictions is the frequent miscategorization of film as “demonstrative evidence,” evidence that purports to illustrate other evidence, rather than to be directly probative of some fact at issue. The Article further demonstrates how these contradictions are based on two venerable jurisprudential anxieties. One is the concern about the growing trend toward replacing the traditional testimony of live witnesses in court with communications via video and film technology. Another anxiety is the public perception of the trial itself as undisciplined and capricious rather than as controlled and truth-establishing. The Article concludes by showing that these anxieties are not well-founded because, when filmic proffers are properly considered, they are admitted as substantive and testimonial evidence. As a result, they are (or should be) subject to hearsay rules and cross-examination and to other rules intended to safeguard the integrity of the trial.
The analysis in Judges as Film Critics is a continuation of the author's prior re-search and publications in the field of law and culture, and draws from evidentiary doctrine and legal scholarship as well as from contemporary film theory and history. This combination takes a fresh look at filmic evidentiary proffers and questions the very assumptions that govern the meaning they are said to project, in light of contemporary theory devoted to the interpretation of film. Such an analysis reconsiders the legal categories that regulate the use of filmic evidence—such as demonstrative, substantive, and real evidence—and begins the development of a more nuanced and common sense doctrine governing the treatment and meaning of film in the court-room. In light of the long history of the use of film in court and the growing use of visual media in the courtroom, it is time to make sense of the case law purporting to explain the admissibility of filmic evidence in terms of a discipline devoted to the film medium.
Federalism and Foreign Affairs: How to Remedy Violations of the Vienna Convention and Obey the U.S. Constitution, Too
Joshua A. BrookThis Note discusses various ways to bring the United States into better compliance with the 1963 Vienna Convention on Consular Relations The introduction to this Note discusses how violations of the Vienna Convention are currently treated in the United States. In particular, the introduction discusses the unsuccessful attempts to prevent the execution of Karl and Walter LaGrand, two German nationals sentenced to death in Arizona. The LaGrands were convicted after a violation of their rights under the Vienna Convention because they were not informed without delay of their right to consular notification and assistance. In later appeals, United States courts refused to review or reconsider the sentence on the basis of the Vienna Convention violation, because the LaGrands had procedurally defaulted the claim. The introduction notes that after the death of Karl and Walter LaGrand, the World Court declared the United States had violated the Vienna Convention, and that it must allow reconsideration and review of death sentences in future cases where consular rights have not been given.
Section one of this Note argues that the federal government has the power to force the States into compliance with the Vienna convention. Subsequent sections of the Note discuss how various branches of the federal government might attempt to force the States to comply.
Section two discusses how the judicial branch might seek to enforce the Vienna Convention upon the states. Section two argues that the United States Courts can and should employ the World Court’s view of the scope of consular rights contained within the Vienna Convention. This section also addresses the thornier problem of sovereign immunity and argues that the Eleventh Amendment should not prevent the federal government from enforcing the Vienna Convention, because the States may not raise the Eleventh Amendment to avoid the effects of a international treaty. Section two argues that even if the Eleventh Amendment does apply to binding international treaties, it does not apply to cases like LaGrand, because these cases clearly fall into the exception to the Eleventh Amendment established by Ex Parte Young.
Section three discusses whether the executive branch could stay or commute a State death sentence for a foreign national, on the ground that the sentence was rendered in violation of the Vienna Convention. This section concludes that an attempt by the executive to delay an execution on these grounds would probably fail because it would fall outside of the President's authority to see the laws are “faithfully executed.”
Section four of this Note discusses the power of Congress to enforce the Vienna convention against the States. The primary obstacle to such an attempt would be the anti-commandeering doctrine of Printz v. United States. This section argues that the anti-commandeering doctrine does not extend to the treaty power. It goes on to propose several routes congress could use to ensure compliance with the Vienna Convention. Congress could enforce the Vienna convention by: using the conditional spending power; expanding federal habeas corpus jurisdiction; creating an independent federal cause of action for violations of the Vienna convention; expressly granting the President limited clemency power; or directly pre-empting State death penalty law with a federal law tracking the Vienna Convention.
Democratizing the American Dream: The Role of a Regional Housing Legislature in the Production of Affordable Housing
Thomas A. BrownEconomic, ethnic and racial residential segregation are ubiquitous across United States metropolitan regions. As a result, the majority of affordable housing is lo-cated in central cities or inner-ring suburbs, generally in areas of highly concentrated poverty. Outer suburbs are often exempt from providing significant housing for the economically disadvantaged regional citizens. This should not be. If housing policy in metropolitan regions were established in a democratic fashion, the give-and-take of the political process would create strong incentives for regional cooperation in the creation of affordable housing. Drawing together scholarship in the fields of local government law, administrative law, and housing policy, this Note proposes the creation of a Regional Housing Legislature (RHL), a democrati-cally elected body composed of representatives from each of the region's localities, charged with establishing a coherent regional affordable housing policy. The exis-tence of the RHL will diminish the contentiousness of existing affordable housing solutions by providing democratic legitimacy and by giving each locality a mean-ingful voice in the development of regional affordable housing policy.
Volume 37, Issue 3
Spring 2004
A Tribute to Ruth G. Blumrosen
Evan H. CaminkerIntentional Job Discrimination —New Tools for Our Oldest Problems
Alfred W. Blumrosen
Ruth G. Blumrosen“The roots of employment discrimination lie deep in our history. By the 18th century, race slavery was the underpinning of wealth in the southern colonies. Black slaves were considered property-—sub-humans who had no rights in themselves or their offspring. In 1765, the British imposed “stamp taxes” on the colonies; the colo-nies resisted. In 1766, Parliament claimed the power to govern the colonies in all matters, but by 1770 it had repealed almost all the taxes that offended the colonists. “Business as usual” returned to the relations between the colonies and Britain.”
Hearing the Danger of an Armed Felon—Allowing for a Detention Hearing Under the Bail Reform Act for Those Who Unlawfully Possess Firearms
Matthew S. MinerThis Article advocates an interpretation of the Bail Reform Act that affords courts the ability to hold detention hearings in gun crime cases to evaluate defendants’ potential danger to the community. According to an interpretation advanced by some courts, gun possession offenses do not constitute “crimes of violence” within the meaning of the Act and therefore those charged with such crimes, even if they have a prior felony conviction, are not subject to pre-trial detention. Arguing against this approach, the Article looks to the Bail Reform Act, the relevant federal case law, and the alarming statistics concerning the growing use of firearms in violent crimes to demonstrate that a more expansive interpretation that includes these crimes is not only appropriate, but more consistent with the plain language and original intent of the Act.
The Article divides the current case law into two camps: the so-called “Slim Majority Rule,” favoring the treatment of unlawful firearms possession as a “crime of violence;” and the “Minority View” of case law, denying a detention hearing in these cases. Recognizing that there is a significant split among federal district and circuit courts about whether the Bail Reform Act permits a such a hearing, the Article carefully dissects the case law, the use of the term “crime of violence” in other statutory contexts and the reasoning underlying both approaches and concludes that the “Minority View” undermines the most basic purpose of the Bail Reform Act-to enhance public safety. As such, the Article advocates an approach that would allow courts, at a minimum, to hold detention hearings in gun cases to ensure that release of the accused would not pose a danger to the community.
The Responsible Thing to Do About “Responsible Party” Provisions in Nursing Home Agreements: A Proposal for Change on Three Fronts
Katherine C. PearsonNursing homes routinely seek the signature of a family member on nursing home agreements, calling the signer a “responsible party” or sponsor for the resident. Federal Medicare and Medicaid law provides that participating facilities must “not require a third party guarantee of payment to the facility as a condition of admission . . . to, or continued stay, in the facility.” Nonetheless, if federal benefits prove to be unavailable, courts are holding responsible parties contractually liable for thousands of dollars for the care of their elders. This Article proposes private and public responses to the increasing likelihood that nursing homes will seek collection from family members.
To Elect or Not to Elect: A Case Study of Judicial Selection in New York City 1977–2002
Steven ZeidmanThis Article examines the process of judicial selection in New York State in light of the recent court decisions in White and Spargo, which have paved the way for increased campaign speech in judicial elections. Relying on empirical data to compare judicial elections and appointments in New York City between 1977 and 2002, the Article finds that elections produce a judiciary that is more beholden to interest groups than one generated through appointments. The consequence of this greater special interest involvement is an erosion of public trust and confidence in the judiciary. Moreover, while elections arguably have increased diversity in the New York City judiciary, elections have not achieved the same result at the statewide level. The Article concludes that New York State should abandon judicial elections and implement a merit selection system with a diverse, non- or bipartisan nominating commission at its core.
Balancing the Demands of the Workplace with the Needs of the Modern Family: Expanding Family and Medical Leave to Protect Domestic Partners
Kimberly Menashe GlassmanThis Note addresses the importance of expanding the federal Family and Medical Leave Act and state family and medical leave laws to protect domestic partners. Congress passed the Family and Medical Leave Act to allow workers to balance their work lives and family lives by granting workers the right to take leave time to care for an immediate family member in times of medical necessity. The term “fam-ily member,” however, is generally limited to relation by blood, adoption, or marriage, and does not include an individual’s domestic partner. The concept of family has evolved in our legal system and is no longer limited by traditional notions of the family. Same and opposite sex unmarried partners have all of the appearances of marriage and should be granted the right and ability to care for one another when one partner is facing a medical emergency.
In recent years, many jurisdictions have begun to provide some of the legal benefits of marriage to domestic partners who live together, are financially interdependent, and generally act as married couples would act. Few states, however, have provided domestic partners with protection under state family and medical leave laws. This Note argues that family and medical leave benefits should be among the rights extended to unmarried partners and proposes a model to achieve this goal. This Note recounts personal stories from domestic partners who were unable to use family leave time to care for their partners, reviews the benefits provided in existing family and medical leave laws that include domestic partners, and recommends elements that a model family and medical leave act should include. The federal government, a state, or a local government might follow this guidance to craft a family and medical leave statute that permits employees to use leave time to care for their domestic partners.
Liberty, Justice, and Insurance for All: Re-Imagining the Employment-Based Health Insurance System
Carolyn V. JuárezThis Note examines the history of employment-based health insurance and the inherent historical limitations that have led to an erosion of health insurance coverage. Based on a review of several studies, this Note argues that the number of uninsured Americans has reached crisis proportions. State reform efforts, legislative proposals, and other proposed solutions have failed to repair the system. Nonetheless, this Note argues that employment-based health care is integral to the structure of national health care. Furthermore, health insurance coverage can be increased by combining employment-based health care with three reforms: large-employer mandates, refundable tax credits, and purchasing pools. This Note concludes that, despite its flaws, the employment-based health care system can serve as a foundation on which to make effective changes and increase levels of health insurance coverage.
When Nice Guys Finish First: The Evolution of Cooperation, The Study of Law, and the Ordering of Legal Regimes
Neel P. ParekhThis Note adds to the scholarship in the area of Evolutionary Analysis and the Law (EA). EA is a paradigm that comments on the implications of evolution on the law. EA recognizes that many complex human behaviors that the law seeks to regulate have evolutionary origins that remain relevant today. This Note details how an understanding of the evolutionary basis of cooperation can bring about favorable revisions and reforms in the law. Following a review of the scientific foundation of EA, this Note sets forth the proposition that humans have an evolutionarily developed tendency to cooperate, an idea that contrasts the widely held belief that the evolutionary man is purely self-interested. This Note does, however, observe that the tendency to cooperate is not expressed at all times. This Note then explores the implications of EA on other areas of legal scholarship, such as behavioral law and economics, default rules in partnership law, and efficient mechanisms of trade. This Note concludes by addressing the concerns of EA critics and mapping a path for the future of EA.
Volume 37, Issue 4
Spring 2004
Campaign Finance Reform and the Social Inequality Paradox
Yoav Dotan“The recent landmark decision by the Supreme Court in McConnell v. FEC opens the way for new and more decisive regulation of the vast amounts of private and corporate money poured into the political system. However, the theoretical grounds for campaign finance regulation—as reflected in the Court’s opinion—remain highly perplexing. The purpose of the current article is to tie together the evolving constitutional principle of equality in election with modern process theory and to apply them to the field of campaign finance. The inherent tension between the stringent requirement for political equality on the one hand and the reality of market inequalities on the other is a central characteristic of liberal democracy. I argue that this tension can best be explained and resolved by the idea of democratic partnership. That is, by the idea that while in liberal democracy the existence of economic inequality is justified on grounds of efficiency, such justification holds only if economic inequalities are subject to the continuing possibility of correction through redistribution of wealth, which should take place as part of the political process under conditions of equality. This analysis reveals that there is a certain paradox in the current campaign finance doctrine. While, according to the fundamental principles of liberal democracy market inequalities should be corrected through the functioning of the political distributive process—under conditions of equality—according to the current doctrine of the Supreme Court, these same market inequalities are allowed to interfere and distort this very process of correction. I call this paradox the social inequality paradox. Because it is the role of the judiciary in liberal democracy to ensure the viability and competitiveness of the democratic process, I argue that it is also the role of the courts to intervene and resolve the social inequality paradox in the field of campaign finance.
The Higher Calling: Regulation of Lawyers Post-Enron
This Article discusses some of the inadequacies in the current ethical regulation of the legal system and proposes a new approach to crafting and contextualizing rules of legal ethics. The proliferation of specialties and subspecialties in law practice, together with the inadequacies of prevailing ethics regulation and the vagaries of ethics rules formulations from state to state have not served either the public or the legal profession well. Manipulation, motivated by politics and self-interest, of the ideology of the organized bar to adhere to ethical rules predicated on an antiquated and unrealistic model of a unified legal profession has likewise been counterproductive. Emblematic of the problem is the “one size fits all” nature of the Rules of Professional Conduct and their ill-suitedness to business law, as opposed to litigation, practice, all of which leads to an atmosphere of indeterminacy in the ethical standards applicable to business lawyers. Part I of this article briefly traces the source and nature of the problems facing ethical regulation of the legal profession, briefly highlighting the practical shortcomings of some antidotes proposed by other scholars. Part II examines the various ethical scandals that have plagued the legal profession over the last 35 years. These scandals began with the National Student Marketing case and include the recent string of corporate scandals which brought to light the unethical behavior of corporate insiders, including lawyers and advisors, which ultimately resulted in the passage of the Sarbanes-Oxley Act of 2002. Part III of this Article endeavors to synthesize some insights from public choice theory into the structural shortcomings of the existing attorney regulatory system. From those insights, one would expect state courts and state bar regulatory agencies to be (and, indeed, they have been) co-opted by the elite bar and not adequately regulating those lawyers in corporate and federal regulatory practice—including especially those practice areas that affect public investors, public markets, and the economy as a whole. Part IV offers a critique of the current approach to attorney regulation, which has featured piecemeal attempts to federalize legal ethics. Part IV proceeds to illustrate the types of approaches to legal ethics which should be avoided. Finally, Part V concludes with a proposal for a partial federal regulation of legal ethics. The model of partial federal regulation offered is by no means the only, or necessarily the optimal, solution, but hopefully it will spark additional discourse that might lead to a workable system for providing business lawyers with the solid, thoughtful, and objective ethical guidance they need. Consistent with this proposal, Part V identifies and highlights a few areas of ethical concern specifically in need of regulatory attention.
Keith R. Fisher
Foster Care Placement: Reducing the Risk of Sibling Incest
David J. HerringThe Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood. The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize the risk of post childhood sibling incest. Although public child welfare systems currently recognize the value and benefits of placing siblings together, these systems fail miserably in this area because of a lack of resources. By focusing on children in the critical period of development, resource-poor public systems can marshal their will and target their resources to actually place this discrete group of siblings together, avoid increasing the risk of post childhood sibling incest, and realize all the benefits of maintaining sibling relationships.
Two Standards of Competency Are Better Than One: Why Some Defendants Who Are Not Competent to Stand Trial Should be Permitted to Plead Guilty
Jason R. MarshallThis Note argues that the present uniform standard of competency, competence to stand trial, be abolished in favor of two standards: competence to stand trial and competence to plea bargain. Part I traces the history of the competency standard by exploring its common law origins, the Supreme Court rulings that frame the debate, an academic reformulation of the competency inquiry, and the interests protected by requiring that defendants be competent to proceed through the criminal process. Part II contrasts the cognitive abilities, capacity to communicate with counsel, and courtroom behavior of defendants standing trial with those qualities required of defendants pleading guilty. Part III explores specific mental illnesses and how the symptomology of each illness determines a defendant’s competence to plead guilty or stand trial. Part IV examines the benefits and dangers of plea-bargaining to both defendants and society and proposes a separate test for competence to plea bargain that would allow some defendants to avoid civil commitment and its threat to liberty. Finally, this Note concludes by arguing that a multi-tiered system provides defendants with more due process protections.
A Whole New Game: Recognizing the Changing Complexion of Indian Gaming by Removing the “governor’s veto” for Gaming on “After-Acquired Lands”
Brian P. McClatcheyThe recent explosive growth of the Indian gaming industry and judicial decisions analyzing a portion of the governing statute point to an inherent flaw in the mechanism provided by the Indian Gaming Regulatory Act (IGRA) for the establishment of off-reservation gaming enterprises. This Note argues for a reform of the so-called “after-acquired lands” provision of IGRA, which would remove the governor’s concurrence requirement and place the decision to allow Indian gaming off-reservation into the negotiating process between states and tribes, as another term to be negotiated between sovereigns. Such a reform would allow states and tribes alike to extract their best possible respective deals, while at the same time ensuring maximum respect for state and tribal sovereignty. The Note concludes by proposing statutory language to accomplish this task.
Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation
Amy RadonDomestic violence is a severe problem for tribes across the nation, as their female members are victimized at highly disproportionate rates compared to members of dominant society. Many tribes have sophisticated domestic violence codes to combat the problem, but they are powerless to prosecute the majority of those who will abuse Indian women: non-Indian men. In 1978 the Supreme Court stripped tribes of their power to prosecute non-Indians in criminal matters, which not only damaged tribal sovereignty but also meant the difference between a life free from abuse and one with constant fear, intimidation, and pain for Indian women.
The federal government has, since that time, had almost exclusive jurisdiction over non-Indians who commit crimes on the reservation. Federal prosecutors with heavy workloads and limited resources often plead out cases of domestic violence to far lesser crimes or decline to prosecute these offenses at all. Tribes that have the resources and commitment to stop violence against Indian women are forbidden to take action against non-Indian offenders. This lack of accountability on the part of dominant society must stop immediately, and tribes must have the power to prosecute these non-Indian offenders to provide the protection these women deserve.
This Note argues that Congress should restore tribal jurisdiction over non-Indian criminal offenders. The primary purpose of restoring tribal jurisdiction is to protect Indian women from abuse by repeat offenders, and ensure these women receive the justice they deserve. Allowing tribes to assert jurisdiction over non-Indian offenders will also show that the federal government has not forgotten the sovereign status of Indian nations, established almost 200 years ago. As sovereign nations, tribes should be permitted to enforce laws covering their territory and ensure justice for their members by responding to the unique problems facing American Indians. Tribal jurisdiction over non-Indians is essential to accomplishing these goals and must be restored by Congress at once.