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Showing papers in "Albany law review in 2006"


Journal Article
TL;DR: The evidence has mounted that the costs attributable to smoking are reflected not only in smokers' decreased longevity and increased risk of disease, but also in the workplace, and the current approaches to employment discrimination based on off-duty smoking are examined.
Abstract: I. INTRODUCTION It has been over forty years since the Surgeon General first released a report stating that cigarette smoking is a health hazard and a primary contributor to lung disease. (1) Since that report, substantial research has established that smoking dramatically increases the risk of death from a plethora of conditions. (2) Despite widespread awareness and acceptance of the risks of smoking, (3) an estimated 44.5 million adults, or 20.9% of the United States population, continue to smoke. (4) It has been estimated that cigarette smoking is now responsible for 440,000 deaths annually in the United States. (5) Another estimated 8.6 million persons in the United States suffer from serious illnesses attributable to smoking. (6) In the years since the Surgeon General's initial report, the evidence has mounted that the costs attributable to smoking are reflected not only in smokers' decreased longevity and increased risk of disease, but also in the workplace. (7) The highest prevalence of smoking in the United States occurs during peak employment years in the twenty-five to forty-four-year-old age groups. (8) Health care costs for smokers are estimated to be as much as forty percent higher than those for nonsmokers. (9) Employers of smokers suffer a substantial loss of productivity attributable to smoking. (10) In the United States, productivity costs attributable to smoking total an estimated $92 billion annually. (11) Many of the employment costs attributable to employee smokers, including increased health insurance costs and productivity losses due to absenteeism, are ultimately shared by nonsmoking employees. (12) Currently, twenty-seven states and the District of Columbia have adopted statutes which prohibit enforcement of employment policies that penalize employees and potential employees for engaging in legal activities such as smoking during non-employment periods. (13) Notwithstanding the substantial support for legislation prohibiting lifestyle discrimination, a significant number of states continue to permit discrimination based on off-duty activities. (14) In those states, an increasing number of employers have opted to enact policies precluding the employment of smokers. (15) Currently, approximately six percent of companies refuse to hire smokers. (16) In contrast to the draconian no-smoking-ever approach taken by some employers in states that tolerate lifestyle discrimination, other employers in those states have adopted a middle-of-the-road approach to leisure-time smoking by employees. Those employers, rather than proscribing employment of smokers, have attempted to pass on at least some of the additional costs attributable to smoking to employees that smoke. (17) This Article examines the current approaches to employment discrimination based on off-duty smoking. Part I examines the constitutional, statutory, and common law background giving rise to the differing views regarding employer consideration of off-duty behavior in making employment decisions. Both federal and state constitutional attacks on employment discrimination against smokers have failed. (18) Similarly, no federal statute prohibits employers from refusing to hire smokers. (19) Finally, a right to be free from employer scrutiny of employee off-duty smoking is not protected by tort law. (20) Part III of this Article examines the majority view that off-duty smoking is not a legitimate employment consideration. An employee's right to engage in leisure-time smoking without employment consequences is defended on both the basis of privacy and the connected notion that condoning discrimination against smokers constitutes a slippery-slope which will result in increased leisure-time scrutiny by employers. Part IV of this Article reviews the arguments favoring allowance of discrimination against employees who smoke. From an economic perspective, a smoking employee simply costs more than one who does not. …

8 citations


Journal Article
TL;DR: A recent controversy surrounding citation to foreign court precedent by the United States Supreme Court has overshadowed the very decisions those citations helped create as mentioned in this paper, which is not for the faint-hearted as it requires judicial invalidation of laws that lead to either absurd conclusions, or hopeless dead-ends.
Abstract: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." Chief Justice John Marshall (1) "[The] constitution [was] intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Chief Justice John Marshall (2) I. INTRODUCTION Recent controversy surrounding citation to foreign court precedent by the United States Supreme Court has overshadowed the very decisions those citations helped create. (3) There has not been a buzz like this in the legal community since Roe v. Wade, (4) and now the legislators have joined the bandwagon as well. (5) My principal observation regarding the Court's trifecta of Atkins, Lawrence, and Roper (6) is that these decisions reveal the judiciary's eagerness to walk in stride with existing global social norms. This is not for the faint-hearted, as it requires judicial invalidation of laws that lead to either absurd conclusions, or hopeless dead-ends. The Court, therefore, looks for extra support in foreign citations as it seeks to expand the frontiers of liberty, privacy, and equal protection that were frozen within the narrow doctrines of Bowers v. Hardwick (7) and Stanford v. Kentucky. (8) Lawrence and Roper evoked strong sentiments for a general theory of foreign court citation. (9) This Article, however, does not seek to answer whether the Supreme Court needs to articulate a general theory for foreign citation. This would be counterproductive, as doing so would unnecessarily call into question the competent jurisprudence that resulted from those citations. Therefore, I seek to explore the issue at a more fundamental level. By understanding the foreign law jurisprudence of individual Supreme Court Justices, I will attempt to develop a framework for foreign court citation. This analysis will serve multiple purposes. First, by developing an individual jurisprudential profile, one seeks to gain insight into the Justices' foreign source inclination. Second, by tracking the evolution of jurisprudence, one searches for the specific practices being endorsed by foreign law. For example, Justices can cite foreign sources of law to elicit confirmation or to render invalidation of a specific doctrinal development. In both cases, however, the process reveals the philosophy and methodology of constitutional interpretation. Third, an understanding of the first two threads allows one to foresee the future trajectory for a specific brand of constitutional adjudication within American jurisprudence. This Article proceeds with an ambitious goal of focusing on a subset of Justices whose impact on foreign citation, I shall argue, provides a more efficient and less cumbersome framework. Furthermore, somewhere down the road, this will help to develop a comprehensive theory on foreign court citation. Let us take a quick preview of some Justices. Instantly, one is drawn to the Scalia-Breyer debate, (10) not because of the wide publicity it generated, but because of the judicial hyper-plane it created due to the sharp divergence within the Justices' respective interpretive methodologies. While Justice Scalia gives primacy to the literal meaning of the text and statutes, (11) Justice Breyer engages in an understanding of what meaning the Constitution held for its citizenry. (12) Since the literal meaning of the texts and statutes cannot comport to the existing social convictions, the very essence of Justice Scalia's constitutional interpretation is the immutability of the Constitution, the evolution of which is unconscionable. (13) On the other hand, Justice Breyer defends the use of foreign sources of law as part of the process from which law emerges. To him, judges in other nations "are human beings ... who have problems that often, more and more, are similar to our own. …

6 citations


Journal Article
TL;DR: The authors of the paper as mentioned in this paper present a taxonomy of possible interactions between science and international law, including conflict, independence, dialogue, integration, consonance, and assimilation.
Abstract: I. INTRODUCTION It is a great honor for me to participate in this symposium on outsourcing authority and to share the podium with such luminaries as Mark Tushnet, Ken Kersch, Susan Karamanian, John Baker, and John McGinnis. Albany Law School has been a wonderful host and sponsor of this symposium. It has chosen a felicitous name to address a theme that is one of the more interesting in current discussions about constitutional interpretation. As a skeptic of constitutional comparativism, I come to the debate from a surprising background. Most skeptics of the use of constitutional comparativism are not steeped in international law and do not describe themselves as international law scholars. But I, on the other hand, received my L.L.M. in international law from the University of Edinburgh, worked in international tribunals on two previous occasions in two European countries, and practiced public and private international law in Washington, D.C. The better part of my professional career has focused on international law. Accordingly, my skepticism is not about international law per se, but rather about the misuse of international law. Much of my skepticism pertains to my sense of how constitutional decision-making should be undertaken. (1) But it also relates to my understanding of the purpose of international law. International law functions best as a bracketed discipline that recognizes its own limits. When international law overreaches, it is met with deep skepticism. The frequent refrain I hear from lay skeptics about Lawrence v. Texas (2) and Roper v. Simmons (3) is "what possible relevance does some modern international treaty have for judges trying to interpret the text of our Constitution which was adopted over 200 years ago?" The criticism reflects a quite respectable and strong impression that international law is arrogantly overreaching, transgressing its proper role as a bracketed discipline. If you will allow an imperfect analogy, the discipline of science functions so marvelously well because it focuses on discrete scientific questions and eschews metaphysical questions. Of course, no scientist lives in a philosophical or ethical vacuum, but the hard sciences are successful because they have the discipline to focus on scientific questions. The renowned theoretical physicist John Polkinghorne has written much about this intersection between the physical and the metaphysical world. (4) On the interaction between science and religion, he writes that science and religion are "partners in the great human quest to understand reality." (5) He then suggests that there are varieties of interaction that might arise between the two disciplines, including conflict, (6) independence, (7) dialogue, (8) integration, (9) consonance, (10) and assimilation. (11) These interactions represent a spectrum of possible relationships in the ongoing debate about the intersection of science and religion. I find Polkinghorne's taxonomy useful in the current debate about outsourcing authority. One might say that with the growing prominence of international law and the proliferation of global constitutionalism, we are struggling to understand the interaction between our own cherished constitutional liberties and the growing body of international and global constitutional law. In short, the question to be raised is how do we understand constitutional law in an international age? In my view, we need not embrace the most hostile approach of conflict or independence. We could and should have fruitful, good-faith dialogue between international law and constitutional law. The two disciplines are largely harmonious, for obviously the treaties we sign and the Constitution we honor are not incongruous. Likewise, our tradition of affording constitutional protections informs the content of our state practice under customary international law. Nor can you understand certain constitutional provisions, such as the "declare war" clause, without an appreciation for international or comparative law. …

5 citations


Journal Article
TL;DR: For instance, the authors argues that the United States Supreme Court has been shaped in important ways by non-doctrinal currents of political and social thought, including the Marshall Court, which was suffused with the nationalist vision that characterized the Chief Justice's Federalist Party.
Abstract: I. INTRODUCTION [W]hat could be more exciting for an academic, practitioner, or judge, than the "global" legal enterprise that is now upon us? Wordworth's words, written about the French Revolution, will, I hope, still ring true: "Bliss was it in that dawn to be alive/But to be young was very heaven." United States Supreme Court Justice Stephen Breyer (1) It is a commonplace amongst historians of the United States Supreme Court that, when it is considered over the long term, constitutional doctrine has been shaped in important ways by non-doctrinal currents of political and social thought. The Marshall Court, for instance, was suffused with the nationalist vision that characterized the Chief Justice's Federalist Party, of which he was a leading light. (2) During his tenure, Marshall's successor, Roger Taney, struck key Jacksonian themes. (3) In both cases, the outside influences on doctrinal development within the Court reflected the political and constitutional visions of the predominating political parties. But this need not be a matter of partisanship pure and simple. Perhaps the most famous instance of social thought suffusing the jurisprudence of the Court took place in the late nineteenth (and early twentieth) century, when the Court repeatedly sounded Darwininian themes, prompting Justice Holmes's famous protest that "the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics." (4) Since the "Constitutional Revolution" of 1937 (5), however, there has been relatively little discussion of the ideological visions that have informed the Court's jurisprudence. (6) This is particularly the case when those visions were broadly consonant with the imperatives of the New Deal/Great Society regime itself, and its attendant notions of progress. (7) While there have been a few scattered exceptions, the discussions of ideology that have given rise to career-making research agendas in the contemporary legal academy have focused on capitialism, racism, sexism, and heteronormativity--they have emerged, that is, from the liberal-left. For liberal legalists, the 1937 transition is understood as the breakthrough that removed the barriers of ideology from constitutional jurisprudence. (8) What came after 1937 was a pragmatic, "living constitutionalism," or a constitutionalism that took into account what, as a practical matter, was necessary, given changing times and circumstances. (9) It was, in other words, a constitutionalsm freed of the ideological fetters of a bygone political era. In many respects, this state of affairs has been a hold-over of the old New Deal liberal regime: liberals and leftists do not have ideologies, they see through them. (10) For this reason, legal scholars, most of whom see the world as partisans of the New Deal/Great Society political regime, as a group, are relatively slow to identify the currents of social and political thought (11)--viewed as social and political thought rather than, simpliciter, contributions to a scholarly literature--that are most likely to have profound effects on the future development of constitutional doctrine. Amongst these is the recent "globalist" turn by the Supreme Court in deciding domestic constitutional cases. (12) To date, legal academics, whether criticizing or defending it, have treated this trend primarily as a question of interpretive theory. (13) "Originalists" like Justice Scalia oppose it because to look abroad in the way that has been done in recent Supreme Court decisions is to look to sources of law (whether binding or not) (14) that are not relevant to ascertaining the original meaning of the constitutional text. On the other hand, most defenders of the practice tend to follow Justice Stephen Breyer (in particular) by focusing on its "pragmatic" value--justices look abroad because, in doing so, they see how judges in other countries have gone about solving similar constitutional "problems." (15) While a large and growing number of scholars have begun to address questions of international influences on the United States Supreme Court, including its burgeoning enthusiasm for citing foreign practices and precedents in reaching decisions involving traditionally domestic areas of constitutional law (such as federalism, gay rights, affirmative action, and the death penalty--as opposed to international trade and admiralty cases), I will argue here that the focus on recent trends in this area as an issue of interpretive theory, a focus natural to most law professors, has obscured a whole range of "diplomatic" justifications for the practice that are discussed openly, and indeed, garrulously, by the Court's justices themselves. …

4 citations


Journal Article
TL;DR: Complementary and alternative medicine (CAM) has been practiced and used in this country continuously since the nineteenth century as mentioned in this paper, including botanical medicine (Thomsonians), health food (Grahamites), homeopathy, hydrotherapy, healing touch (mesmerists), osteopathy, naturopathy, chiropracty, and Christian Science.
Abstract: Complementary and alternative medicine (CAM) has been practiced and used in this country continuously since the nineteenth century.2 All of the forms of care present then are still present today including botanical medicine (“Thomsonians”), health food (“Grahamites”), homeopathy, hydrotherapy, healing touch (“mesmerists”), osteopathy, naturopathy, chiropracty, and Christian Science.3 In the 1920s and early 1930s, three studies reported CAM usage of thirty-four percent, eighty-seven percent, and ten percent.4 Thirty percent of those born before 1945 use CAM compared with about one-half of those born between 1945 and 1964 and seventy percent of those born between 1965 and 1979.5 Although there may

4 citations


Journal Article
TL;DR: The actions of the pharmacist in this story were particularly objectionable, but the underlying phenomenon of a refusal to dispense prescription contraceptives in a pharmacy has gained increasing visibility in recent years.
Abstract: I. INTRODUCTION In January 2005, a Wisconsin mother of six children who experienced condom failure after intercourse obtained a prescription for emergency contraception (1) and traveled to a Milwaukee Walgreens to fill the prescription. (2) Instead of honoring the physician's medical instructions, however, pharmacist Michelle Long refused to fill the prescription and "publicly berated" the customer, telling her, "You're a murderer. I will not help you kill this baby. I will not have the blood on my hands." (3) Although the customer tried to reason with the pharmacist, the pharmacist's castigation only escalated: "I tried to explain to her that it's emergency contraceptives, that it's not an abortion pill. She then snatched the form from me, that the prescription was attached to, telling me the paper was full of lies, and she won't be a part of it. I was crying, shaking, upset, so embarrassed. I wanted to run out of the store and hope[d] nobody else could get a good look at me." (4) The customer was too traumatized to locate another pharmacist to fill the prescription; subsequently, she discovered that she was pregnant and had, in the face of the unwanted pregnancy, an abortion. (5) While the actions of the pharmacist in this story were particularly objectionable, the underlying phenomenon of a refusal to dispense prescription contraceptives in a pharmacy has gained increasing visibility in recent years. Pharmacists in states from California to Massachusetts have refused to fill prescriptions for birth control pills. (6) Pharmacists have denied women emergency contraception following sexual assault as well as after contraceptive failure. For example, a pharmacist in Denton, Texas refused to fill a rape survivor's prescription for emergency contraception on the basis that dispensing the prescription would violate his moral beliefs. (7) Other pharmacists and pharmacies fail to stock emergency contraception at all. (8) Pharmacists who refuse to fill contraceptive prescriptions typically claim a moral, religious, or ethical right to refuse to fill these prescriptions. (9) Some such pharmacists erroneously believe that emergency contraception is not contraception, (10) but an abortifacient drug and thus refuse to stock or dispense this medicine. (11) Other pharmacists believe all hormonal contraceptives are potentially abortifacient drugs. (12) These refusals to dispense prescription contraceptives enjoy support from a small, but growing, nationwide anti-contraception movement. (13) Because millions of American women use prescription contraceptives, (14) such refusals have drawn widespread public attention and media scrutiny nationwide. (15) Federal and state lawmakers have waded into the waters of the debate and have advocated a range of legislative solutions, ranging from protections for women seeking to fill contraceptive prescriptions to "refusal clause" statutes granting pharmacists the right to refuse to honor these prescriptions. (16) While some legal nonprofit groups defend the rights of those pharmacists who have refused to fill contraceptive prescriptions, (17) other organizations strive to safeguard a woman's ability to fill a contraceptive prescription while working with pharmacies to accommodate the diverse beliefs of their pharmacist employees. (18) The controversy came to a head in August of 2006 when the federal government granted partial over-the-counter (OTC) status to emergency contraception after years of governmental delays and contentious debates. (19) Complicating the debate has been widespread ignorance and misunderstanding concerning emergency contraception. (20) The federal government, as well as leading medical organizations, such as the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Women's Association (AMWA), state that pregnancy begins when a fertilized egg is implanted in the lining of the uterus. …

3 citations


Journal Article
TL;DR: In this article, the authors present a study of the New Hampshire Supreme Court, examining the inner workings of the court itself and its relationship to the State of New Hampshire, with consideration given to each justice's place on the court as a whole.
Abstract: I. INTRODUCTION This High Court Study attempts to create a view of the current New Hampshire Supreme Court that is informative to the practitioner in a tangible way, and indicative of the direction in which the court appears to be headed and the effect that direction will have on both the law of the state and the greater state of the law. The Study will begin by examining the inner workings of the court itself and its relationship to the State of New Hampshire. Then, after explaining the methodology that will be employed, each justice will be examined independently, with consideration given to that justice's place on the court as a whole. Lastly, the Study will take a close look at the past, present, and future of the "Claremont cases," which entail a series of constitutional challenges to New Hampshire's system of public education. Throughout this Study, much heed will be given to the positions and reasoning of individual justices. New Hampshire is a state known for its independent nature, and though it takes a majority to decide a case, that majority is made up of autonomous legal minds. Because the most significant legal questions of the day are adjudicated and decided within this dynamic, this Study assumes that each individual position on the court can be revealing to the academic and crucial to the practitioner. Methodologically, this Study does not concentrate on the outcome of any single case. Instead, the focal point is the manner in which the justice or the court arrived at a given decision. Although cases are at times reversed or overruled, more commonly it is the gentle shifts in reasoning that change future outcomes and thus demand the most sincere contemplation. II. THE COURT Sitting in Concord, the Supreme Court of New Hampshire is the highest tribunal and the only appellate-level court in the state. The court consists of one chief justice and four associate justices, each nominated by the governor and confirmed by a five-member executive council. (1) Each justice can serve, on good behavior, until reaching the age of seventy, at which point retirement becomes mandatory. (2) The office of chief justice is now chosen in the same manner as the associate justices. However, current Chief Justice John Broderick took the office of chief justice under a different statutory provision that has since been declared unconstitutional. (3) As with many, if not all courts, one can safely surmise that the method of judicial selection in New Hampshire has a profound effect on the respective behavior of the justices. (4) The two most salient factors of New Hampshire's selection system that likely affect the justices' voting patterns are first, that neither the people, nor the legislature, have a direct say in the selection process, and second, that the justices have a pre-determinable and usually lengthy tenure. (5) It is, of course, anyone's guess as to how these factors will influence any specific justice's voting pattern, much less any specific justice's vote in a particular case; however, the freedom to come down on what often amounts to be a politically unpopular side without fear of political retribution should not be underestimated. (6) The Supreme Court of New Hampshire's role in the state government is three-fold. The court has the power of appellate, and in rare cases, original jurisdiction, (7) the power of overall administration of the state court system, (8) and the obligation to issue advisory opinions at the request of the legislature or the governor. (9) With an animated mix of precedent, (10) procedural changes, (11) ballot measures, (12) and even the occasional scandal, (13) this court has been particularly active in both the law and the news (14) of New Hampshire throughout the past several years. Amidst all this commotion, it is a wonder that the court can find the time to dispose of 721 cases per year, though that is exactly what it does. …

3 citations


Journal Article
TL;DR: For instance, the state of Vermont was ranked the smartest state in the United States in 2005 by the National Journal of Public Instruction (NJPI) as discussed by the authors, which was based not only on public school spending but also on an array of student achievement statistics.
Abstract: "Advanced education is a New England tradition." (1) George D. Aiken, Governor of Vermont (1937-1941), U.S. Senator (1941-1975) "[Education] is the one thing which we cannot afford to curtail." (2) Calvin Coolidge, Thirtieth President of the United States and native Vermonter I. INTRODUCTION Over the past year, Vermont education has been featured prominently in national news media. (3) In rankings released in November 2005, Vermont was crowned the nation's "smartest state" by Morgan Quitno Press, an independent private research and publishing company. (4) The state's top ranking was derived from a formula based not only on public school spending, but also on an array of student achievement statistics. (5) Evidently, not only have Vermonters made a strong commitment of their tax dollars to funding public schools, but their students achieve results in the classroom. Even a cursory survey of Vermont history reveals that the people of Vermont have always valued the importance of a good education. The earliest colonists to Vermont taught their children reading and arithmetic in the home. (6) As population increased in the state, every town set aside land for a primary school. (7) In fact, Vermont's original Constitution of 1777 required the legislature to establish a school in each town. (8) But not only did Vermonters make education universally available, they also emphasized quality of instruction. At these first schools, which were funded by local taxes and voluntary tuitions, (9) it was not uncommon for the town's "better qualified" to "take turns in teaching with little or no compensation." (10) Rural school teachers, equipped with "crude one-room buildings" and "a handful of books" poured heart and soul into teaching Vermont's youth. (11) In fact, it was a Vermonter who turned teaching into a "scientifically trained profession." (12) In Concord Corner, education pioneer Reverend Samuel Read Hall established the first normal school in the United States in 1823. (13) At this school, Hall introduced the blackboard into the classroom, where it was first used as an everyday teaching tool. (14) In addition to these noteworthy achievements in elementary education, early Vermonters were focused on and passionate about providing advanced education. (15) They quickly opened two institutions for higher education: the University of Vermont in 1791 and Middlebury College in 1800. (16) Vermont's most preeminent Americans have recognized the value of education--cherishing it in their personal lives and promoting it in their public lives. Governors of the state have been loyal to the cause of education in what may be called Vermont's executive educational tradition. (17) In their inaugural addresses, chief executives from Isaac Tichenor in 1802, to Samuel Crafts in 1828, to Erastus Fairbanks in 1860 have extolled the "state's affirmative obligation to cultivate the essential attributes of citizenship through public education." (18) Calvin Coolidge, thirtieth President of the United States and a native of Plymouth Notch, Vermont, devoted a significant portion of his Autobiography to his elementary and secondary schooling career. (19) As a student at Black River Academy in Ludlow, Coolidge's teachers and classmates had such an impact that he later called it "one of the greatest events of my life." (20) Robert T. Stafford, who had an illustrious career in Vermont politics--serving as Governor, U.S. Congressman, and U.S. Senator--left a very important mark on education at the national level. (21) He was instrumental in passing federal legislation providing for low-interest loans to American college students. (22) Under the Stafford Loan plan, as it is now called, the Federal Government pays the interest on the loan while the student is enrolled in college if the student's family demonstrates financial need. (23) So why does Vermont possess such strong educational character, standing ahead of the rest? …

3 citations


Journal Article
TL;DR: The rights of children born out of wedlock have been of critical importance to the New York State legislature and judiciary since the early 1900's and the provisions of the EPTL are less archaic than those of the FCA and CPLR when it comes to recognizing the evidentiary use of DNA in proving paternity.
Abstract: The rights of children born out of wedlock have been of critical importance to the New York State legislature and judiciary since the early 1900's. (1) Taking guidance from their federal counterparts, each of these branches of government have pursued an active role in enhancing the rights of non-marital children in order to ensure that they are treated in pari materia with children born in wedlock. (2) Within the area of trusts and estates, the rights of non-marital children have progressed significantly from the days when they were classified as illegitimates and were forced to suffer for the "sinful" acts of their parents. (3) For example, the provisions of what is now section 3-3.3 of the N.Y. Estates, Powers and Trusts Law ("EPTL") include illegitimate children as "issue" for purposes of the anti-lapse statute. (4) Additionally, in 1990, the provisions of section 2-1.3 of the EPTL were amended to include non-marital children within a class disposition under a will, trust, or other instrument. (5) Further, in 1975, a new provision was added to section 5-4.5 of the EPTL in order to entitle non-marital children to participate in wrongful death actions as paternal distributees. (6) Non-marital children have also been included by judicial flat within the class of after-born children protected by the provisions of section 5-3.2 of the EPTL. (7) A common thread running through each of these legal advances for the non-marital class is the requirement that the paternity of the child first be established pursuant to the provisions of section 4-1.2 of the EPTL, commonly referred to by estate practitioners as the "paternity statute." (8) While this threshold burden is understandable, its end-result vis-a-vis New York's aims of promoting parity between non-marital children and their marital counterparts has been disappointing, if not counterproductive. Most significantly, this is apparent within the context of applications to determine paternity through use of DNA blood testing pursuant to the provisions of section 4-1.2(a)(2)(D) of the EPTL. Based upon antiquated notions relative to the reliability of DNA test results, this section precludes the use of such evidence for purposes of establishing paternity when the testing is performed, or the results are obtained, posthumously. (9) The ill-effects of the statute upon the rights of non-marital children have been dramatic, depriving some of inheritance rights even under circumstances where scientific testing has established paternity within the range of 99.19% to 99.89%. (10) In other instances, courts have invoked the statute to deny applications to obtain posthumous blood and/or tissue samples, as in the case where exhumation of a decedent's body was sought for purposes of testing. (11) These decisions were made despite the equities which revealed that, absent proof of paternity, the party seeking exhumation would lose fundamental personal and property rights. Significantly, the provisions of the New York Family Court Act ("FCA") and the New York Civil Practice Law and Rules ("CPLR") are less archaic than those of the EPTL when it comes to recognizing the evidentiary use of DNA in proving paternity. (12) Indeed, as compared to the provisions of section 4-1.2(a)(2)(D) of the EPTL, there is nothing in the provisions of section 532 of the FCA that prohibits the admission of post-death blood results into evidence, thereby foreseeably affording greater opportunity for non-marital children to prove paternity in the Family Court than in the Surrogate's Court. (13) To rectify this incongruity, and in an effort to advance the rights of non-marital children otherwise accorded under New York law, the Trusts and Estates Law Section of the New York State Bar Association proposed legislation that "would allow posthumous testing of blood and tissue samples to determine paternity." (14) As originally drafted, the bill specifically referred to the provisions of Article 15 of the Not-for-Profit Corporation Law authorizing exhumations and would have amended that statute to confer jurisdiction upon the Surrogate's Court as well as the county and supreme courts to hear and determine such applications. …

3 citations


Journal Article
TL;DR: In a recent study, this article found that older workers who are laid off more likely than younger workers to remain unemployed, but they are more likely to be re-employed on a part-time basis.
Abstract: I. INTRODUCTION The American workforce is aging. The Department of Labor's Bureau of Labor Statistics (BLS) forecasts a 10 percent overall increase in the civilian labor force between 2004 and 2014. (1) During the same period, however, the BLS predicts that the number of workers age fifty-five and older will increase by 49.1 percent-almost five times the overall growth rate. (2) The BLS estimates that by 2012, workers under the age of forty will comprise only 46.8 percent of the civilian labor force. (3) These trends reflect the aging "baby-boom" generation--those individuals who were born between 1946 and 1964, all of whom are now over forty years old. (4) Of late, much has been made of the potential impact baby-boom generation workers may have once they leave the workforce. In anticipation of large numbers of baby-boomers retiring, and out of concern for concomitant under-funded payout obligations, for example, President George W. Bush unsuccessfully made "reforming" Social Security a key item on his second-term agenda. (5) Others have noted that private pension plans will also be affected, (6) and indeed the Pension Benefit Guaranty Corporation reports that "[c]ompanies with underfunded pension plans reported a record shortfall of $353.7 billion in their latest filings" with the agency. (7) This number represents a 27 percent increase in the funding shortfall reported one year earlier. (8) Whether or when to retire is obviously not always a function of personal choice, however. A recent national survey of close to 3,100 individuals showed that job loss or health issues caused four out of ten retired workers to leave their jobs earlier than they had intended. (9) The survey also showed that although 45 percent of the employed respondents intended to continue working after age sixty-five, only 13 percent of the retirees had actually done so. (10) Of the early retirees, 44 percent cited job loss as the reason they had left the work force. (11) Corporate bankruptcy, company mergers or reorganizations, and relocation of work, often resulting in permanent worksite closures, can all result in involuntary retirement. (12) Whatever the reason, when older workers are terminated during these events, statistics indicate that they are likely to remain unemployed for a longer period than younger workers. (13) For example, while workers aged fifty-five or older comprised 16.9 percent of those filing initial claims for unemployment benefits due to layoffs in 2004, 19.7 percent exhausted unemployment insurance benefits. (14) Not only are older workers who are laid off more likely than younger workers to remain unemployed, but they are more likely to be re-employed on a part-time basis. (15) Although the labor participation rate for older workers is trending upwards, they can be disproportionately affected when employers conduct layoffs to cut costs, eliminate duplicative jobs, or streamline operations simply because they are paid the most or because of employer concerns regarding pension liability. (16) One question that has long troubled older workers is whether employers discriminate when they lay off workers for economic reasons such as higher salaries or potential pension liability. Because salary and pension eligibility are often correlated with age, layoff plans using such factors to determine which workers to cut often affect older workers in greater numbers. (17) Until recently, the question of whether older workers have any protection against these actions has been met with considerable controversy. In particular, courts and commentators have disagreed regarding whether layoff selection criteria may properly be based on economic factors highly correlated with age. (18) In March 2005, the Supreme Court resolved an issue that had confounded the lower federal courts for years. In a case rising from the Fifth Circuit, Smith v. City of Jackson, (19) the Court held that a disparate-impact theory of recovery is available to workers suing their employers under the Age Discrimination in Employment Act of 1967 (ADEA). …

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Journal Article
TL;DR: In another study, a group of Brazilian judges as mentioned in this paper pointed out that prisoners in Brazil, and probably all over the world, know just as much about the U.S. Constitution as the typical American student.
Abstract: Some years ago, I was lecturing in Brazil and Argentina on constitutional issues, and I spoke one day to a group of Brazilian judges on criminal procedure and due process rights in the United States. When I was finished, up stood one very frustrated Brazilian judge who complained that when prisoners come into his court, they demand their "Miranda rights." I had several reactions to the judge's revelation. First of all, I could understand his frustration that a foreign system was injecting its law into his courtroom. As a prosecutor, I remember that even some state judges didn't like lawyers interjecting federal law into their courtroom--as if it were "foreign" law. With judges from other countries, there must be a special sense of resentment at the claimed superiority--sometimes--of United States law. My other reaction was, in a way, a sense of pride of the influence of American law. Actually, this was not so much evidence of the influence of American law as it was of the power of American media, film, and television. I realized that prisoners in Brazil, and probably all over the world, know just as much about the U.S. Constitution as the typical American student. That is, what they know about the U.S. Constitution they have learned from "cop" shows and movies which address the issues of criminal procedure--from arrest through trial. There is much more to the U.S. Constitution, of course, than just what's portrayed on television and in the movies. Nevertheless, in this age of globalization, the message of the media shapes the worldwide understanding of U.S. legal culture. We live in a world, which has become much more wired than it was when I gave those lectures years ago in Brazil. Back then, you had only radio, television and film, all of which offer only one-way communication. Now, with the Internet, communication is much more interactive. So now one might ask: why shouldn't Americans listen to what others around the world have to say on issues that affect them, just as well as they do us? Indeed, Americans are more insulated than people in many other countries. It is often embarrassing when traveling abroad to have people ask, what do people in the United States think about us? The truth of the matter is that people in the United States rarely think about those outside of the United States. What most Americans know about other countries comes from watching television news reports--usually tragedies about events such as bombings in Israel or Iraq. Many people outside the United States know more about U.S. politics than most Americans do. What the U.S. does affects them much more than what their countries do affects the U.S. When you watch news abroad, what you often see is what we would call local U.S. news. Of course, what you hear is not the same kind of commentary. But maybe that's the point. If people of other nations know a great deal about the U.S., why not listen to their views? Shouldn't we have a two-way communication, instead of just those of us in the United States expressing views on matters affecting political power, culture, law, etc.? This seems to be the question some members of the U.S. Supreme Court are asking themselves. Although a constitutional originalist, I am also, however, a comparativist. I appreciate the importance of understanding international and foreign law. Indeed, to be an originalist, I believe, requires some understanding about international and foreign law. International law, known at the founding as the "law of nations," is background for much in our Constitution. (1) Federalism derives from ancient treaty arrangements; in other words, federalism is drawn from what we would call international relations. In discussing federalism, for example in The Federalist Papers, the Framers demonstrated their knowledge of the ancient federations of Greece and Rome, as well as those of Switzerland and the Netherlands. (2) Those who drafted the Constitution viewed them as undesirable models and deliberately chose not to follow any of them! …

Journal Article
TL;DR: In this paper, the authors examine the future of state judicial selection in light of the two Republican Party of Minnesota v. White decisions and explore what options states have to promote judicial independence whether they wish to stick with an elected court system or move towards another means of selecting judges.
Abstract: Judicial selection is a historically sleepy affair for many states. Once characterized as "about as exciting as a game of checkers ... [p]layed by mail," (1) non-partisan judicial elections involving unopposed incumbents seeking reelection seldom attracted much attention either from the media or voters. (2) With limits in many states on what candidates could say, as a result of judicial or legal canons, voters knew little about those running for office. (3) The result was elections often devoid of debate or information that may be instructive to voters. (4) In a handful of states, however, including Texas, judicial selection is partisan, raucous, expensive, and hotly contested. (5) For those fearing the worst of what a politicized state court system could be, Texas is an anomalous nightmare ... or is it? As a result of two court decisions in Republican Party of Minnesota v. White--the first by the United States Supreme Court (hereinafter White), (6) and the second by the Eighth Circuit Court of Appeals (hereinafter Republican Party of Minnesota) (7)--the next round of state judicial elections in Minnesota, New York, and elsewhere could include not just candidates seeking party endorsements but also soliciting contributions and announcing positions. (8) As a result, the future of many sleepy judicial elections may look increasingly more nightmarish like Texas. This article examines the future of state judicial selection in light of the two Republican Party of Minnesota v. White decisions. Specifically, it explores what options states, especially those having non-partisan judicial races, now have to promote judicial independence whether they wish to stick with an elected court system or move towards another means of selecting judges. Part I of this article examines the politics of judicial selection. Specifically, it examines the different types of state judicial selection methods and assesses whether they make a difference in terms of who sits on the bench and how cases are decided. Part I also examines the experiences that states have had with partisan elections. It concludes by examining the reasons for recent trends towards the politicization of state judicial campaigns. Part II shifts to an examination of the two Republican Party of Minnesota v. White decisions. This section attempts to first describe judicial selection in Minnesota prior to the White decisions and set the context for the litigation in the cases. The remainder of Part II provides a detailed analysis of the two decisions. Part III of the article shifts to exploring what options states have for judicial selection in light of the two White opinions. The first part of this section will ask whether the White opinions should be read narrowly as only prohibiting some types of regulation of judicial campaigning and speech or whether they should be read more expansively signaling that judicial elections and campaign speech should be seen as no different than other races for competitive office. To help clarify the impact of the White opinions, examination of their treatment in subsequent disputes by other courts shall be examined. Finally, this part of the paper concludes with what options there are to "fix" judicial selection--be it with elections or an appointment process--in light of the White opinions. Overall, the argument of this article is that the two White opinions should be read broadly as significantly offering judicial campaign speech the same First Amendment protection as afforded rhetoric in other competitive races. If states fear that competitive judicial campaigns where candidates announce their positions affiliate with political parties and other groups or solicit political contributions are a threat to judicial independence, then there is little they can do so long as elections are used to select judges. Instead, as both the Supreme Court and the Eighth Circuit declared, the turn to elections to select judges forfeits judicial independence for public accountability. …

Journal Article
TL;DR: In this article, the authors analyze whether organizational law has an influence on the development of a market preference for either active- or passive-investor venture capital funds in Taiwan and conclude that organizational law should not influence the decisions of the parties in the market to pursue either active or passive investment strategies.
Abstract: I. INTRODUCTION The current orthodox view is that investors in U.S. venture capital funds are passive. (1) They delegate decision-making authority and other management responsibilities to the fund manager. (2) Legal scholarship on the U.S. venture capital market, however, has offered surprisingly little analysis on why venture capital fund investors are passive. (3) Furthermore, scholars have almost completely ignored the possibility that investors could be active in their fund's business. (4) The emphasis that scholarship has placed on passive investors in venture capital funds might cause one to assume it was a global phenomenon. In fact, it is not. The Taiwanese venture capital market, for example, is dominated by funds whose investors are active in decision-making and other aspects of the fund's business. (5) This Article does not directly challenge the view that investors in most U.S. venture capital funds are passive, (6) but it does question why a venture capital market in any jurisdiction would exhibit a preference for either active- or passive-investor funds. More specifically, this Article questions whether organizational law influences a venture capital market to develop a preference for either strategy. Indeed, when scholars have addressed the question of investor passivity in U.S. venture capital funds, they have tended to focus on how the preferred organizational form for U.S. venture capital funds, the limited partnership, contributes to investor passivity. (7) Against the backdrop of the U.S. experience, an initial glance at the Taiwanese venture capital market raises even more questions regarding the role of organizational law in creating a market preference for a specific management strategy. In Taiwan, where active-investor funds are prevalent, funds organize as corporations, not limited partnerships. The contrast between the Taiwanese and U.S. venture capital markets causes us to ask why passive-investor funds do not dominate in Taiwan as they do in the United States and whether organizational law has an influence on this difference. (8) Admittedly, there are strong arguments that organizational law should not influence a market preference for either management strategy. In most cases, a fund's choice of management strategy--active- or passive-investors--will determine the organizational form it chooses, not vice versa. That is to say, the limited partnership form will not influence a preference for passive-investor funds in a venture capital market. Instead, market conditions cause the participants in the market to prefer a passive-investor strategy and they then select the limited partnership because it suits their management strategy. Similarly, the corporate form does not influence a preference for active-investor funds in a venture capital market. Instead, participants in the market choose to pursue an active-investor strategy and then organize as corporations because the corporate form best meets the needs of their preferred management strategy. These arguments have obvious merit, but they assume that organizational law in every jurisdiction creates sufficient choice and flexibility for the parties. (9) When organizational law does not provide choice and flexibility, however, then it will influence the decisions of the parties in the market to pursue either active- or passive-investor strategies and contribute to a market preference for a particular strategy. Thus, although there may be many factors that contribute to the predominance of passive-investor funds in the United States and active-investor funds in Taiwan, we should not unquestioningly accept the status quo as efficient. Rather, we should consider whether organizational law hinders more efficient contract design. This Article analyzes whether organizational law has an influence on the development of a market preference for either active- or passive-investor venture capital funds. …

Journal Article
TL;DR: The use of international and foreign law as a source of authority in the interpretation of the U.S. Constitution has been discussed in this paper, where it has been shown that the use of foreign and international law is not compatible with the theory of originalism.
Abstract: My remarks today concern the use of international and foreign law as a source of authority in constitutional interpretation. First, I will discuss what it means to use foreign or international law as authority in the interpretation of the U.S. Constitution. Second, I will assume the truth of originalism as a theory of constitutional interpretation and show why the use of contemporary foreign or international law is incompatible with that theory. Because that lack of compatibility can be simply stated, I will then suggest that the use of foreign and international law is objectionable under even more pragmatic theories of constitutional interpretation. First, what does it mean to use international law or foreign law as an authority in helping to construe the Constitution? The Supreme Court uses foreign or international law as authority when it gives weight in American constitutional law to propositions because they are part of international or foreign law. There are thus two conditions that must be met for international or foreign law to be treated as authority. The Court has to give such propositions weight and it has to give them weight as foreign or international law. It is sometimes said by the apologists for the use of international and foreign law that, of course, such propositions have no authority because the Supreme Court is not treating them as binding. But that is a non sequitur. Even Supreme Court precedent does not bind the Supreme Court in that it may be overruled and yet no one would deny that precedent has authority in constitutional law. The real question is whether propositions of international or foreign law are going to be given any weight (i.e. whether their existence could make a difference to the way the Court comes out). If propositions of international and foreign law are not going to be given any weight, I do not have a strong objection to citing them. I still have a quibble: the practice of citing material that is largely decorative may hurt the transparency of the opinion. Multiplying citations to propositions that do not make a difference to the outcome makes it harder to figure out what are the authorities that are doing the work in reaching the result. Certainly if the Court is not giving foreign or international materials weight, the Court should make clear in it's citation practice that foreign and international legal material is being included for some reason other than its intrinsic authority. Second, my objections are limited to propositions that are given weight by virtue of their presence in foreign or international law. Depending on their theory of constitutional interpretation, Justices may have other good reasons to use a proposition occurring in foreign or international law as a source of authority in constitutional interpretation. For instance, Justices may consider moral principles relevant to constitutional interpretation and may believe the proposition that happens to be contained in international and foreign law is a morally good one. But in that case the methodological question is what weight morality should have in constitutional construction, not the relevance of foreign or international law. Let me make an analogy. Justices generally give our own domestic precedent weight, regardless of whether precedent is itself soundly reasoned. Justices could simply look at precedent to determine whether it contains reasoning that they judge to be good by some metric provided by the correct theory of constitutional interpretation. That would just be using precedent for informational value. (1) But Justices generally do use a precedent as authority as well, i.e. for its disposition value. Whatever its informational value, a precedent will make subsequent court opinions more likely to come out in its direction simply because it is precedent. My subsequent critique depends on international and foreign law being given weight beyond its informational value. …

Journal Article
TL;DR: The use of foreign and international law in constitutional interpretation was discussed with a federal judge as mentioned in this paper, one of the most conservative on the federal bench, who pointed out that there are two kinds of authority: binding and persuasive, and that anything that is not binding is not persuasive.
Abstract: Not long after the Supreme Court's decision in Lawrence v Texas, (1) I was discussing the use of foreign and international law in constitutional interpretation with a federal judge (who shall remain nameless) After a few minutes, this judge, one of the most conservative on the federal bench, said that in his court there are two kinds of authority: binding and persuasive, and that anything that isn't binding is persuasive For instance, he could refer to a movie or other popular culture if it helped make his point He then said that foreign and international law could be far more persuasive than law from the Ninth Circuit The fact of the matter is that the Supreme Court and federal and state courts throughout the country have been using foreign and international law in their decisions since the Eighteenth Century (2) Every member of the current Supreme Court who has sat for a full term has either authored or joined opinions that have used foreign and international law, in some way, to interpret constitutional provisions that facially have no international implications (3) Until recently, discussions of foreign law in very famous Supreme Court cases, from Dred Scott (4) to Miranda (5) to Roe v Wade, (6) have gone largely unnoticed Other discussions of foreign law in famous opinions, such as Justice Harlan's cryptic use of foreign law in his Poe v Ullman dissent, (7) are still fairly obscure Listing every case in which this practice has occurred would take far more time than we have here today In light of the enormousness of this subject, I will discuss something that is often not mentioned: the way that state courts have used foreign law and international opinions in their recent jurisprudence (8) While there's been much ink shed in the last two years over the relevance of the views of the world community in Supreme Court interpretation, the states have largely been ignored in this commentary (9) As difficult as it is to construct a coherent narrative of legal trends with the Supreme Court, surveying state law is like watching Brownian motion That said, the general scholarly consensus seems to be that foreign law is not often used by contemporary state courts, except in certain discrete areas where the substance of foreign law is necessary to deciding domestic law questions These areas include serving process, conducting discovery, ensuring recognition of foreign judgments, assessing rights under foreign law in probate and domestic relations matters, deciding choice of law issues, and in interpreting contracts with forum selection clauses In other words, when the courts really can't get around it Outside these enclaves, however, state courts can and do use foreign law, representing international opinion on social and legal matters, in a variety of areas Many state courts have used foreign laws and views to interpret and make common law, the arena in which their authority is at its greatest Just this year, in the disastrous Naxos Records case, (10) the New York Court of Appeals cited the international community's views on whether the sale of a sound recording constitutes a "publication" in determining whether certain musical recordings were protected under New York common copyright law (11) Numerous state courts have used foreign law in making and revising their tort law State courts in Wisconsin, 12 New Jersey, (13) Louisiana, (14) and Hawaii (15) have considered the predominant view in the world that municipalities should be liable for the torts of public actors in reconsidering common law precedents to the contrary Similarly, in the seminal case of Li v Yellow Cab Co, the California Supreme Court cited the laws of France, Austria, and Portugal in supplanting the traditional contributory negligence system with a pure comparative negligence system, (16) and the Alaska Supreme Court cited the laws of "Austria, Canada, France, Germany, the Philippines, Portugal, and Spain" for the proposition that a comparative negligence system "has long been used in other nations of the civilized Western world …

Journal Article
TL;DR: Spam is a kind of problem in which both the senders' and receivers' constitutional interests conflict, and an "opt-out" solution may be preferable to " opt-in" legislation because e-mailers' commercial speech should also be respected.
Abstract: I. INTRODUCTION We live in a flood of unsolicited commercial e-mail, or "spam." (1) The development of the Internet, "an international network of interconnected computers," (2) brings us "electronic mail," (3) which is one of the most powerful and important communicative tools we have ever had in our history. E-mail, like other methods of communication, enhances and reinforces the freedom of speech, which is one of the quintessential values in a free democratic society. Furthermore, it may be a very easy, low-cost, and efficient method for a small shop to advertise its commodities. However, this very cheap and convenient method, which furthers the free exchange of information and ideas in cyberspace, also delivers us daily messages that we have not solicited. Most of the spam e-mails we receive are allegedly obscene materials or commercial solicitations. (4) It is true that trashing and deleting unsolicited spam consumes our precious time and annoys us. Furthermore, spam also inflicts harm on Internet service providers (ISPs) by consuming a great deal of memory space and hindering the traffic of data. (5) According to an official report, each South Korean (Korean) "uses 3 e-mail accounts on average, and each e-mail account receives about 4.6 spam mails on average per day, which is a fifty-three percent decrease from the same period of the previous year (9.7 spam mails)." (6) To regulate spam, the Republic of Korea (Korea), one of the civil law countries, has frequently revised its anti-spam law; the "Act on the Promotion of Information and Communications Network Utilization and Information Protection, Etc." (PICNUIP). (7) Meanwhile, the U.S. Congress also enacted an anti-spam law; the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003" (Can-Spam Act). (8) Then, what is the problem of spam from a constitutional perspective? On the one hand, some critics, overwhelmingly in Korea, claim that spam is so useless and harmful that it should be regulated by law, especially because it invades receivers' constitutional right to privacy. (9) Others, however, argue that it should be protected as commercial speech. (10) These arguments resemble the conflicting points of view about privacy between the continental law countries and the United States--that is, "dignity v. liberty." (11) In other words, it seems that spam is a kind of problem in which both the senders' and receivers' constitutional interests conflict. In the meantime, the PICNUIP recently adopted "opt-in" (12) regulation over fax and telephone spam. However, in the United States, the Can-Spam Act maintains an "opt-out" (13) system. Among the legal regulations over spam, an "opt-out" solution may be preferable to "opt-in" legislation because e-mailers' commercial speech should also be respected. II. THE CONCEPT OF SPAM A. What Is Spam? Spam is not a legal term and has different names such as "junk mail," (14) "bulk-mail," (15) or "unsolicited commercial e-mail" (UCE). (16) In general, it is conceded that spam must meet three criteria (as we can infer from its diverse nicknames): it must be unsolicited, it must be commercial in nature, and it must be sent in bulk. (17) However, with regard to these factors, deciding whether an e-mail is spam or not creates difficult problems. First, the fact that the e-mail is "unsolicited" is an essential factor of most definitions of spam. (18) However, "[f]rom a technical perspective ... it may be ... difficult to assess whether an e-mail communication is unsolicited, particularly if the prior relationship is comprised of something other than a previous exchange of e-mail messages." (19) Second, to be regarded as spam, an e-mail must be "commercial." The Can-Spam Act also requires a "commercial" trait. (20) However, other types of spam (i.e. "political spam") (21) do not demand this "commercial" trait. As to judging an e-mail's "commercial" character, "indirect as well as direct commercial content ought to qualify--for example, an e-mail message containing a review of a free web site that contains advertisements should be considered commercial if it is sent on behalf of the web site's operator. …

Journal Article
TL;DR: In this article, the authors define the concept of a search as a two-sided inquiry: first, if an individual has a protected interest, and then the focus turns to the governmental techniques used to obtain tangible things or information.
Abstract: I. INTRODUCTION The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (1) In analyzing any Fourth Amendment issue, two separate questions must be answered: Is the Amendment applicable; and (2) If so, is it satisfied? (2) To be applicable, a "search" or "seizure" must occur. This Article addresses the definition of a search. There are "few issues more important to a society than the amount of power that it permits its police to use without effective control." (3) When it labels certain governmental quests to obtain evidence as not a search within the meaning of the Fourth Amendment, the Supreme Court insulates those activities from any judicial oversight. (4) Defining a search is a two-sided inquiry: governmental actions (5) must invade a protected interest of the individual. (6) If the individual does not have a protected interest, actions that might otherwise be labeled a search will not implicate the Fourth Amendment. If a person has a protected interest, then the focus turns to the governmental techniques used to obtain tangible things or information. Much has been written about what constitutes an individual's protected interest, which the Court measures by utilizing the often-criticized reasonable expectation of privacy standard. (7) This Article does not add to that discussion; instead, it assumes that the individual has a protected interest and focuses on the part of the inquiry that has often been neglected, that is, what governmental methods of obtaining tangible things or information are or should be considered invasions of the individual's protected interest and, hence, a search within the meaning of the Fourth Amendment. This Article first examines the historical background of the Fourth Amendment, emphasizing the physical intrusions that animated its adoption. It then details the Court's treatment of the concept of a search, cataloguing both physical and non-physical governmental activities. The word "search" is a term of art in Fourth Amendment jurisprudence and is not used in its ordinary sense. (8) The conclusion that a search has happened varies depending on the type of governmental activity utilized to obtain the evidence. That activity may include physical manipulation, visual observations, other use of the senses, and the employment of instrumentalities such as a dog's nose or technological devices. In Supreme Court jurisprudence, physical manipulation by the police comes closest to a common sense understanding of what a search is. That literal view must be contrasted with other situations, particularly sense-enhancing devices where the legal definition is divorced from the ordinary meaning of the term, thus permitting the Court to conclude that no search has occurred. The use of technological devices to learn something that would not otherwise be discovered is so rapidly expanding that it is difficult to grasp the myriad ways the government can obtain tangible evidence or information. Therefore, it is essential that the Court provide a comprehensive definition of the concept of a search to ascertain when the Amendment is implicated by a device that the government employs. This Article proposes that any intrusion with the purpose of obtaining physical evidence or information, either by a technological device or the use of the senses into a protected interest should be considered a search, and, therefore, must be justified as reasonable. As will be discussed, the definition proposed here is based on several considerations: an analogy to physical invasions, which is rooted in historical concerns and provides a workable standard; a need to inquire into the government's purpose in engaging in the activity because the Amendment is only applicable to intentional governmental actions; the relevant inquiry is not whether significant or criminal facts are learned, but that something is learned as a result of an intrusion into the individual's protected interest; there is no principled difference among sense-enhancing devices or their availability to the public; and finally, and most importantly, the Amendment's fundamental purpose, which is to protect individuals from unreasonable governmental intrusions. …

Journal Article
TL;DR: The use of non-U.S. law in the analysis of the United States' legal system has been studied extensively in the last few decades as discussed by the authors, with a focus on the use of references.
Abstract: What are we to make of references to non-U.S, law in Supreme Court opinions? (1) One place to begin is by distinguishing between uses and references. A court uses a source of law when that source provides some degree of authority to support a material proposition in its analysis. A source of law provides authority when the mere fact that it is a source supports the proposition; an authority has force independent of the reasons that support the court's assertions. (2) A reference, in contrast, is a statement that something is a legal proposition, without any suggestion that the matter referred to has any authority beyond that fact. (3) Importantly, the recent invocations of non-U.S, law in Supreme Court opinions are references, not uses. (4) Nor, I emphasize, do references imply that the matters referred to have any degree of authority. For example, referring to a decision of the European Court of Human Rights to reject the proposition that some practice has been universally condemned in Western society does not imply anything about the correctness of the European Court's decision, or that the substance of its decision has weight independent of whatever reasons can be mustered in its support. (5) Another example: The statement "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved" (6) does not accord that disapproval any authoritative weight, nor does it purport to "fabricate 'national consensus,"' to quote Justice Antonin Scalia's derisive phrase. (7) It reports a fact about the world, and the report's accuracy has not been challenged. Such references are indistinguishable in this regard from, for example, citations to law review articles as sources of factual information. (8) Why might a court refer to non-U.S, law? Justice Stephen Breyer's pragmatic defense of the practice is probably the most widely known, as are its defects. (9) Here, I want to sketch a counterintuitive explanation for the practice. Referring to non-U.S. law in Supreme Court opinions might be a way in which Supreme Court Justices participate in the dissemination of a distinctively American self-understanding. By this I do not mean that Justices who refer to non-U.S, law necessarily endorse the (reasonable) interpretive theory that the U.S. Constitution instantiates universally true propositions of political morality. (10) Rather, I mean that references to non-U.S, law might be a way of ensuring that the United States helps lead the world's nations to a better way of governing themselves and their peoples. (11) That there is such a national self-understanding emerges from consideration of some brief texts that are classics precisely because they capture this self-understanding. The earliest, perhaps, is John Winthrop's sermon on the Arabella, as the Pilgrims approached the new world. (12) In this sermon, Winthrop said that the Pilgrims were about to create a "citty [sic] upon a hill" with the "eies [sic] of all people ... uppon [sic] us." (13) How this new city unfolded in history would provide guidance to the rest of the world. Winthrop may have been the first to articulate this vision. Ronald Reagan is among the most recent. In his farewell address to the American people, Reagan echoed Winthrop, referring to the United States as a "shining city upon a hill." (14) And between them there is Abraham Lincoln, describing the task of preserving a truly United States as one that would save--or lose--"the last best hope of earth." (15) But in discussions of the practice I am concerned with here, the canonical reference is to the phrase in the Declaration of Independence, "a decent respect to the opinions of mankind." (16) These statements say something about one version of the nation's self-understanding, but on their face they do not seem to support referring to other nations' law. They seem rather to be about other nations referring to--paying attention to and emulating--the United States. …

Journal Article
TL;DR: In this article, the authors present a series of foundations for an independent interpretation of the Maryland Declaration of Rights in the context of private shopping malls, including the specific text of the declaration, Maryland state history, the merit and relevance of federal case law, and the merits of independent interpretation.
Abstract: I. INTRODUCTION Protected by both the First Amendment to the U.S. Constitution and Article 40 of the Maryland Declaration of Rights, (1) the right to free expression is one of the most sacred freedoms in our society. (2) Similarly, the rights of private property owners are highly valued. (3) Consequently, when a person seeks to engage in speech on private property, the courts often must intervene to resolve the tension between these competing rights. This tension between speech and property rights has been especially apparent when citizens have attempted to engage in expressive activities in private shopping malls. Although such cases have arisen in other jurisdictions, they have not yet been considered by the Maryland courts. However, when the time does come for the Maryland courts to adjudicate these competing interests, they should protect a constitutional right to engage in issue-oriented, non-disruptive speech in large shopping malls, even when these malls are privately owned. The Supreme Court has interpreted the First Amendment of the Federal Constitution to hold that shopping malls do not involve state action because they do not carry out functions traditionally performed by the government. (4) Notwithstanding, Maryland courts must interpret Maryland's free speech provision: Article 40 of the Declaration of Rights. Unlike the First Amendment, Article 40 should not be interpreted to require state action; rather, it should also apply to private parties, including the owners of shopping malls. Moreover, the broad speech rights conferred by Article 40 require that Maryland courts find that shopping malls are dedicated to a public function. As such, malls in Maryland should be constitutionally obligated to permit free speech. (5) The grounds favoring an independent state interpretation of the right to free speech are countless. (6) One recognized ground is case law from state courts that have favored independent interpretations of state constitutional provisions. (7) This Article draws from these cases, and examines a series of foundations for independent interpretation. These include: the specific text of Article 40; Maryland state traditions; Maryland state history; the merit and relevance of federal case law; and the merit and relevance of sister state case law. Before exploring these various bases which support an independent interpretation of Article 40, Part II introduces the state action concept and U.S. Supreme Court case law adjudicating free speech in private shopping malls. Part III follows with an examination of the merits of independent state constitutional analysis. Finally, the article applies to Article 40 the various bases for departure drawn from state court opinions and assesses the value of departing from First Amendment jurisprudence. II. THE STATE ACTION CONCEPT AND THE U.S. SUPREME COURT'S ADJUDICATION OF THE FREE SPEECH RIGHT IN PRIVATE SHOPPING MALLS The Federal Constitution protects individual rights against invasions by government, or invasions that involve what has been called "state action." (8) In other words, the Federal Constitution generally does not seek to govern or regulate the affairs of private individuals. (9) The state action doctrine first arose in the Civil Rights Cases, (10) where the U.S. Supreme Court held that the Fourteenth Amendment did not authorize Congress to prohibit discrimination by inns, conveyances, and places of amusement that were privately owned. Rather, its purpose was "to provide modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment." (11) Thus, the rights and liberties guaranteed by the Fourteenth Amendment "erect[] no shield against merely private conduct." (12) The Supreme Court, however, has failed to adequately explain the state action concept. …

Journal Article
TL;DR: The work of the Court of Appeals of New York State has been the subject of a recent program on state government reform as discussed by the authors, with the goal of examining the reform process within the judicial branch of the state government.
Abstract: FEBRUARY 10, 2006 I'd like to begin by explaining my presence, as well as my absence, today. First, my presence. The Law Review's invitation was an irresistible one. To be part of a program on state government reform--what an exciting subject for me in my administrative and judicial roles as Chief Judge, to say nothing of my interest as a citizen. I was intrigued also by the opportunity for me to step back and look at the reform process within the Judicial Branch with as much objectivity as I could muster. With my day-to-day calendar being what it is, I don't have much opportunity to do that. And it is always a pleasure to visit the Law School, a second home here in Albany. That the Court of Appeals is in Session this week and next partly explains my absence this morning, and my inability to linger with you through the afternoon. Our court conferences every morning throughout the Session, as we did this morning, and I now have a second week of fascinating cases ahead to prepare. "Fascinating cases" are another reason I feel uncomfortable joining in this afternoon's discussion. Some of our decisions may be on the table today, being mercilessly dissected; of even greater concern, you may be addressing issues that are on their way to us, and I don't want to have to disqualify myself. And sadly, the death of former Court of Appeals Judge Matthew Jasen requires that I travel to Buffalo to attend his funeral tomorrow morning. So with your indulgence, I would like to tell you about some ongoing and proposed reforms within the Third Branch, and some of the tools we use to pursue them--and then I plan to head off to the airport, along with a briefcase filled with next week's cases. I should say right at the outset that, while decisions of the state's high court are obviously part of the process of reforming government--that is what checks and balances are all about--I will most decidedly not be discussing our cases, but rather will leave that to others. I will stick to reform of the Third Branch, which is a sufficiently large and indigestible subject. Just last Monday, in my State of the Judiciary message, I put an entire courtroom to sleep covering only highlights of 2005. (1) It seems appropriate to begin by introducing myself and my institution. I grew up in Monticello, New York, graduated from Barnard College and New York University Law School, and practiced commercial litigation for twenty-one years in New York City law firms in cases involving mergers, acquisitions, securities fraud, breached contracts, and the like. I dreamed large to be sure, but never fantasized that I might someday head the Third Branch of New York State government. In 1983 came the miracle of my appointment to the Court of Appeals by Governor Mario Cuomo, and ten glorious years later, a second miracle: Governor Cuomo appointed me Chief Judge, a 14-year term that regrettably draws to a close in March 2007. With the position of Chief Judge of the Court of Appeals came a second title, a second box of stationery--Chief Judge of the State of New York--and new duties as head of the Judicial Branch. That role includes oversight of more than 360 courthouses across the state, 16,000 employees, 1,200 state-paid judges, case dockets that number in the millions annually, and a budget hopefully always equal to our awesome responsibilities. I. AN OVERVIEW OF THE THIRD BRANCH Being Chief Judge means leading the Judiciary, which as we all learned long ago is a separate, co-equal branch of government. Obviously intrinsic to the faithful exercise of the judicial function is the separation--the independence--of the Judiciary to assure complete integrity in its judgments, untainted by "control or coercive influence" of the other branches (2) or by the whim of the majority. Judicial independence is essential to our system of checks and balances, essential to protecting our fundamental rights and liberties, and thus an essential premise of reform in the courts. …

Journal Article
TL;DR: The Court of Appeals of Wisconsin has divided appellate courts into two categories, "error correcting" and "law declaring" as discussed by the authors, and the difference appears to concern the jurisdiction of the two types of appellate courts.
Abstract: The Court of Appeals of Wisconsin has divided appellate courts into two categories, "error correcting" and "law declaring." (1) This difference appears to concern the jurisdiction of the two types of appellate courts. The "law declaring" court is the highest state court and its jurisdiction is limited to important questions of law. (2) In deciding cases within this limited jurisdiction, the "law declaring" court may correct errors, but its "error correcting" function is only incidental to its "law declaring" function. (3) The "error correcting" court hears appeals from trial courts and its decisions are final unless the issue before it was within the limited jurisdiction of the "law declaring" court above it in the judicial hierarchy. (4) Prior to the creation of the district courts of appeal, by constitutional amendment, in 1956, the Florida Supreme Court functioned both as a "law declaring" court and an "error correcting" court. (5) Since the supreme court heard appeals as a matter of right from Florida's principal trial courts--the circuit courts--it was an "error correcting" court. (6) However, because the supreme court had the final say as to the meaning of Florida law, especially Florida constitutional law, it also functioned as a "law declaring" court. (7) When the district courts of appeal set up shop in early 1957, the intent was that, with few exceptions, (8) the Florida Supreme Court would be a "law declaring" court only. (9) In most instances, the new district courts of appeal were to be the "error correcting" courts for the circuit courts (the state's principal trial courts). (10) The new, and very limited role for the Florida Supreme Court, was set out in the Florida Constitution: Appeals from trial courts may be taken directly to the supreme court, as a matter of right, only from judgments imposing the death penalty, from final judgments and decrees directly passing upon the validity of a state statute or a federal statute or treaty, or construing a controlling provision of the Florida or federal constitution, and from final judgments or decrees in proceedings for the validation of bonds and certificates of indebtedness. The supreme court may directly review by certiorari interlocutory orders or decrees passing upon chancery matters which upon a final decree would be directly appealable to the supreme court. In all direct appeals and interlocutory reviews by certiorari, the supreme court shall have jurisdiction as may be necessary to complete determination of the case on review. Appeals from district courts of appeal may be taken to the supreme court, as a matter of right, only from decisions initially passing upon the validity of a state statute or a federal statute or treaty, or initially construing a controlling provision of the Florida or federal constitution. The supreme court may review by certiorari any decision of a district court of appeal that affects a class of constitutional or state officers, or that passes upon a question certified by the district court of appeal to be of great public interest, or that is in direct conflict with a decision of another district court of appeal or of the supreme court on the same point of law.... (11) The Florida Supreme Court was quick to recognize the huge change in its status. In 1958, the supreme court "pointed out that under the constitutional plan the powers of this Court to review decisions of the district courts of appeal are limited and strictly prescribed." (12) At almost the same time, it began to lay the groundwork to undermine its new role. In Lake v. Lake, (13) the supreme court was, for the first time, (14) faced with a petition asking it to review a "per curiam affirmed" decision not supported by a written opinion. (15) The petitioner before the supreme court argued that the facts of Lake were "very similar" to the facts of an earlier supreme court case; however, here the decision of the district court of appeal apparently differed. …

Journal Article
TL;DR: In 2003, the United States Supreme Court used the Due Process Clause of the Fourteenth Amendment as a means to test the appropriateness of punitive damages awards imposed by state courts.
Abstract: I. INTRODUCTION In 1994, a District Court of New Mexico awarded a woman $160,000 in compensatory damages and $2.7 million in punitive damages because of the burns caused after the woman spilled a cup of McDonald's coffee on herself. (1) In 1996, the Alabama Supreme Court awarded $4 million dollars in punitive damages in light of $4,000 worth of cosmetic damage to a doctor's BMW. (2) And in 2000, a Florida Circuit Court awarded $145 billion in punitive damages, the largest such award in American history, against cigarette companies in a class action suit after hearing evidence from only three claimants without any information as to who the other members of the class were, how many there were, or the extent of their injuries. (3) As the disparity between punitive damages awards and the related compensatory awards increased and the grounds upon which they were rewarded became increasingly vague, questions began to stir. When are punitive damages awards too high? At what point does the punishment fail to fit the crime and instead operate as a windfall to the plaintiff while unlawfully depriving defendants of their property without due process of law? How are courts to ascertain the propriety of the punitive damages awards granted by juries? In response to these and similar cases, the United States Supreme Court began to use the Due Process Clause of the Fourteenth Amendment as a means to test the appropriateness of punitive damages awards imposed by state courts. (4) In 1996, and in light of ever increasing punitive awards, the Court set forth a test composed of three factors by which an award of punitive damages becomes excessive and violates due process. (5) In 2003, that test was further clarified giving lower courts more and more direction as to how the Due Process Clause places substantive limits on punitive damages awards. (6) These judicial decisions, however, have not gone uncontested. This Note will examine the Supreme Court's 2003 application of the Due Process Clause to place substantive limitations on punitive damages awards in civil cases. It will consist of nine parts. Part II very briefly examines the elements and purpose of both the Due Process Clause and punitive damages awards. Part III tracks the Supreme Court cases leading up to BMW of North America Inc., v. Gore, the case in which the Supreme Court laid down its guidelines for examining punitive damages awards. (7) Part IV discusses the BMW factors and shows how the BMW Court used those factors to overrule a $4 million punitive damages award as excessive. (8) Part V provides a detailed analysis of the next major judicial excursion into the punitive damages and due process intersection, the Court's decision in State Farm. (9) This Part also discusses how the Court further clarified application of the BMW factors in a case that overturned a $145 million punitive damages award as violating due process. (10) Part VI discusses the need for BMW and State Farm, emphasizing the general trend towards higher awards and the many problems caused by excessive punitive damages awards. Part VII assesses some of the strengths of the BMW/State Farm test while arguing against those that believe that State Farm was wrongly decided. It is my position that State Farm (a) adequately protects a defendant's due process rights in providing him with the requisite notice regarding wrongful conduct and the potential sanctions that flow from such conduct; (b) has not abrogated state control over punitive awards; (c) has not eviscerated the power of punitive damages by couching such awards in terms of the harm to the individual plaintiff, but rather allows punitive damages to remain a powerful jurisprudential tool; and (d) does not mandate a single-digit ratio between punitive and compensatory awards. Part VIII refutes the argument that State Farm ignores the economic reality of litigation through its use of a balancing test rather than some bright-line mathematical formula. …

Journal Article
TL;DR: In this paper, the authors pointed out that the identity of the court hearing their case is at least as important as the facts of their case and pointed out the importance of the forum of a case.
Abstract: I. INTRODUCTION A. Background To most seasoned trial lawyers, the identity of the court hearing their case is at least as important as the facts of their case. (1) As one legal scholar has commented, "'[e]very trial lawyer ... would agree that [where] the case is to be tried, is without question one of the most significant factors, perhaps the most significant factor, in the outcome of the case.'" (2) Even if one would like to believe that the locale of the lawsuit is not outcome determinative, the fact is that lawyers who try cases believe that it makes a big difference. (3) In a world where most cases are disposed of by settlement, (4) perception becomes reality. Nobody would dispute the importance of a lawsuit's venue. As two researchers concluded, "forum matters." (5) This preoccupation with the identity of the decision-maker is no more profound than in the context of the choice between a state and federal court for resolution of a civil lawsuit, particularly when the plaintiff is deprived of her original selection of a state court as the preferred forum due to a defendant's removal to federal court. (6) As one researcher noted, "a plaintiffs ability to avoid removal [from state to federal court] could mean the difference between winning and losing." (7) Empirical research that is available suggests that such assertions are not hyperbole, with removed cases sharing a statistically significant low win-rate. (8) Issues affecting the forum that will adjudicate claims, therefore, have a profound impact on the adjudication of such claims. In terms of federal-state jurisdiction, the last decade might fairly be characterized as one wherein the legal profession has witnessed a three-fold significant expansion of federal court jurisdiction over state law claims. First, in 1990, Congress passed the supplemental jurisdiction statute--28 U.S.C. [section] 1367--which not only provided sustenance to the threatened doctrines of pendent and ancillary jurisdiction, (9) but when read literally, undermines some doctrinal creatures of the federal courts designed to limit the scope of the courts' diversity jurisdiction. (10) At the end of its 2004-05 term, the United States Supreme Court finally resolved a longstanding circuit split (11) by giving the statute a literal interpretation such that no longer must each claimant in a diversity case joined pursuant to Federal Rule of Civil Procedure 20 independently satisfy [section] 1332's amount in controversy requirement (12) despite the Supreme Court's contrary pre-statutory (13) requirements enunciated in Clark v. Paul Gray, Inc. (14) and Zahn v. International Paper Co. (15) Indeed, in certain contexts, (16) this statute arguably permits results inconsistent with the complete diversity requirement of Strawbridge v. Curtiss. (17) Most interestingly, in a very recent case the Supreme Court displayed a tolerance for a broad reading of the supplemental jurisdiction statute even in the face of increasing the reach of diversity jurisdiction in a way that the Court found illogical: It is not immediately obvious why Congress would withhold supplemental jurisdiction over plaintiffs joined as parties "needed for just adjudication" under Rule 19 but would allow supplemental jurisdiction over plaintiffs permissively joined under Rule 20. The omission of Rule 20 plaintiffs from the list of exceptions in [section] 1367(b) may have been an "unintentional drafting gap." If that is the case, it is up to Congress rather than the courts to fix it. (18) Second, in 2002, Congress passed the Multi-Party Jurisdiction Statute--28 U.S.C. [section] 1369--which provides for federal court jurisdiction over certain mass tort state law claims (e.g., suits arising out of single occurrences resulting in the deaths of at least seventy-five people) with only minimal diversity--cases that would have traditionally only been heard in state courts. …