Showing papers in "Albany law review in 2009"

Big bad pharma: an ethical analysis of physician-directed and consumer-directed marketing tactics.

Abstract: I. INTRODUCTION "We try never to forget that medicine is for the people. It is not for the profits. The profits follow." (1) This noble mantra is long-forgotten in today's world of extreme pharmaceutical marketing tactics, which are frequently deceptive and supported by biased information. Pharmaceutical manufacturers often appear to forget their moral purpose and instead engage in the hard sell, stopping at nothing to reach their goals. If that means providing false of misleading data to physicians and consumers, then so be it. Pharmaceutical sales teams are a force to be reckoned with, comparable to an army prepared to enter a battle, equipped with powerful tools to take down anyone who stands in their way. Through distribution of free drug samples, skewed marketing materials, meals, and more, the industry engages in deception hidden by a veil of flattery and free gifts. (2) Although free sample distribution does present some benefits to patients, it is uncontrolled and accompanied by distorted data and gifts. (3) Physicians often stand to benefit a great deal from this symbiotic relationship with brand name pharmaceutical manufacturers ("big pharma"), and are unwilling to sacrifice the free gifts and luxurious trips for patients' best interest. Distribution of gifts by the pharmaceutical industry has formed a rift between what physicians are morally obligated to do and what physicians personally desire, creating a breach of fiduciary duty owed to patients. (4) Upon entering the medical profession, a physician agrees to always act in his or her patients' best interest. A physician who accepts bribes puts his own personal interests ahead of his patients' best interest. The medical profession remains one of the few professions trusted by the public. Thus, practices affecting the medical profession must be held to a stricter standard of behavior to maintain that trust. Big pharma's marketing efforts are not limited to physicians. In fact, a great deal of money and effort is spent every day completely bypassing physicians and appealing directly to consumers, through television, print, and internet advertisements. (5) These direct-to-consumer ("DTC") advertisements are frequently filled with covert, deceptive, and confusing messages. DTC ads are particularly dangerous, as lay persons are not trained with the medical know-how to discern fact from fiction. In its current form, the pharmaceutical industry is virtually free of regulation, aside from a few voluntary guidelines. (6) In addition to guidelines created by the American Medical Association ("AMA") and other professional groups, the industry has promulgated self-imposed guidelines with respect to both physician-directed and consumer-directed marketing. These guidelines, however, are all highly arbitrary, discretionary, and unenforceable. Although the United States Food and Drug Administration ("FDA") does impose limited parameters by which the industry must abide, the current regulations entrust an excessive level of power and discretion to manufacturers. Furthermore, despite the amending of previous Pharmaceutical Research and Manufacturers of America ("PhRMA") guidelines, it is unclear if the new regulations will be enough to protect patients. The current system appears to remain inefficient and dangerous to consumers. This paper argues that pharmaceutical manufacturers are exploiting both physicians and patients. The United States is in dire need of more stringent regulation with respect to brand name pharmaceutical company marketing. (7) The current recommended guidelines and relaxed FDA regulations are not sufficient. Regulation should be increased through the enactment of laws. Specifically, direct contact between pharmaceutical sales representatives and physicians should be minimized or eradicated entirely, and televised drug advertisements should be prohibited. In order to maintain an incentive for big pharma to continue investing in research and development, safeguards should be implemented, such as allowing manufacturers to mail samples to physicians and permitting printed drug advertisements directed toward consumers. …

Ethics of Lawyer Social Networking

Abstract: Social networking via the internet (sometimes called "Web 2.0") can be a low-cost way to connect with friends, family and old acquaintances, and form new relationships. (1) For lawyers, social networking can make business development "faster, better and cheaper." (2) As a result, it has become a topic of interest for many in the legal profession. (3) In a 2009 survey conducted by the American Bar Association, forty-three percent of lawyers surveyed said that they are members of at least one online social network (this compared to only fifteen percent in 2008). (4) Twelve percent of respondents reported that their firms are also members of at least one online social network. (5) Online social networking thus may play an increasing part in the legal community, and will continue to evolve as developers produce new innovations to increase the number and quality of services offered. (6) This technology and the frequency of its use has already outpaced established legal practices. Existing ethics guidelines generally do not focus on technology issues, and state bar associations have been slow to fill in the gaps with opinions and best practice guides. (7) Yet lawyers require at least a basic understanding of how social networking works and some awareness of the ethical implications of using such technologies. (8) This article briefly addresses some of the ethics issues lawyers may face when they use social networking tools. (9) I. WHAT IS SOCIAL NETWORKING? Social networking Web sites allow registered users to upload profiles, post comments, join "networks," and add "friends." (10) They give registered users the opportunity to form "links" between each other, based on friendships, hobbies, personal interests, and business sector or academic affiliations. (11) Social networking sites can be used both personally, to contact friends and find old classmates, and professionally, to look for employment or find someone with whom to collaborate. Most social networking systems are available to all users. Some are available by invitation (or special qualification) only. Most begin with a personal focus on linking "friends," but many now are used both for business and personal networking purposes. Some directly solicit participation by lawyers. (12) These sites have received significant media attention. (13) Employers now search social networking sites before hiring employees; (14) consumers worry about protecting themselves from identity theft; (15) and parents seek to keep their children safe from online predators. (16) Advertisers, moreover, increasingly seek ways to exploit social networking systems to entice users into commercial relationships. (17) These kinds of concerns are multiplied when legal professionals use social networking tools. II. ETHICAL CONSIDERATIONS: A SURVEY As suggested below, the ABA Model Rules of Professional Conduct ("Rules") do not directly address all of the ethics concerns associated with social networking. (18) The Rules, however, point to potential issues in a number of areas. The following survey of some of the essential ethical considerations associated with lawyer use of social networking examines the terms of the Rules and reviews some interpretations of the Rules provided by bar ethics opinions, cases, and commentaries. (19) A. Competence, Diligence and Supervision Rule 1.1 requires that lawyers provide "competent representation to a client." (20) Competent representation requires the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." (21) Because "[a] lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation," it is difficult for a law to meet the competency threshold in more technical or complex matters. (22) In accordance with these basic principles, lawyers who use social networking tools must at least have a working understanding of the technology. …

Playing the Odds or Playing God? Limiting Parental Ability to Create Disabled Children through Preimplantation Genetic Diagnosis

Abstract: Suppose [persons with disabilities] believe that their child will be happier if she shares her parents' condition, and take action to prevent her from developing normally, for example, not giving the growth hormone that will make her taller, or not providing a cochlear implant that might overcome a mild form of congenital deafness. Such actions would arguably harm the child and constitute child abuse, for the child would be denied a treatment essential for future functioning in society. Unless it could be shown that children born to such parents are in fact better off if they share the parents' disability, stopping parents from prenatal lessening of offspring abilities would not ... interfere with their procreative liberty. (1) These words, written by Professor John A. Robertson, resonate more in today's society than when first written fifteen years ago, when screening of preimplantation embryos for genetic disease was only experimental. (2) No longer are Professor Robertson's words a supposition of what our future holds--our future is here. And while originally preimplantation screening was thought to be a mechanism to discard embryos carrying disease, clearly Professor Robertson foresaw the downside to this technology long before it became a reality. Today, some couples are no longer satisfied with having perfectly healthy babies; they would rather have a child that is disabled, like them. This Comment argues that parents do not have a moral or legal right to harm their children by ensuring that they are born with a disability or disease through the use of preimplantation genetic diagnosis ("PGD") or other assisted reproductive technologies ("ARTs"). There is no constitutional right to use PGD, and so the individual states should be free to regulate this arena. At this time, however, no states have implemented any legislation that would prevent parents from using PGD in any capacity, whether to help or harm their future children. As such, those children already born through PGD, who cannot benefit from present or future regulation of reproductive technologies, should benefit from indirect methods of regulation through the tort law system. Part I of this Comment will explain the science behind current ARTs, specifically PGD, and address instances in which parents have used PGD to create disabled or diseased children. Part II will discuss the current state of reproductive law in the United States, as well as legislation currently in effect in Canada and Western Europe. Part III will examine the ethical implications presented by the use of PGD to limita child's opportunities, mainly the conflict between the ethical principles of beneficence and autonomy, and how both of these cannot be achieved when parents use PGD for this purpose. Part IV will analyze why parents do not have a constitutional right to use PGD to create disabled or diseased children, and why the states may intervene with regulation. Finally, Part V will present an alternative solution to direct regulation through federal or state legislation by using the tort law system as an indirect method to regulate these issues. I. BACKGROUND ON PGD AND ITS USES TODAY ARTs refer to those fertility treatments that include the handling of both sperm and eggs. (3) ART encompasses in vitro fertilization ("IVF") (4) and its variations, which include: intracytoplasmic sperm injection ("ICSI"), (5) gamete intrafallopian transfer ("GIFT"), (6) zygote intrafallopian transfer ("ZIFT"), (7) and PGD. (8) Accomplished prior to IVF transfer, PGD is the process by which one or two cells are removed from a human zygote, or biopsied, after which the genetic makeup of the cells is analyzed. (9) Only those embryos that were not carriers of whatever gene was being screened for are then implanted in the uterus. PGD was designed to screen for disabilities or diseases in order to avoid passing on serious genetic defects to offspring. …

Critical Race Feminist Bioethics: Telling Stories in Law School and Medical School in Pursuit of "Cultural Competency"

Abstract: A SISTERSONG BALLAD (1) I know Sisters. I know Sisters who lived lives full enough to be stories- "Her-stories" untold, Carried through the heartbeat of mother's wit.., all the time being "othered" by legal fictions that turn humans to chattel property; Allowing her and "her-story" to be created, bought and sold. I know Sisters. Sister Anarcha got a story for all to take heed. Her-story cuts so deep, make you bear down, close your eyes and legs... Once you hear how her private was made public, With fine silver wires sewn together without anesthesia, Just like she was broke and needed fixin' in order to breed. I know Sisters. Sister Betsey got a story make your head spin around twice. Her-story led to the development of the urinary catheter, Yet another invention--pulled on and sewn up Perfected on her "othered" existence, Amounting to a historically accepted, but marginalized vice. I know Sisters. Sister Lucy got a story that laid the foundation for the medical specialty of gynecology, Her-story gave meaning to a pewter spoon, Both ends bent and inserted to open "the way" To see fistulas evidencing the truth About 'property' bearing human crop, Resulting in a prototype for both you and me. I know Sisters. I know Sisters who know Sisters who lived lives full and deep enough to be stories- "Her- stories" Seeing the light of day, heard through lyrics in her song All the time being centered by her-storical accuracies; Allowing Sisters to tell "her-story" In her rhythm and blues, soulful gospel, Jazzed up by the hip-hop, caught up in the rap-ture... As only a Sister can, in her own words, in her own way. I know Sisters. I know Sisters who write their own sister song ballads, As reproductive wrongs twist and shout, To revere the lives lived of Sisters past, and lives to be lived of Sisters present And for the life of every Sister yet to come; Whose lives together compose the "Her-stories" Worthy to be song about. INTRODUCTION This article examines how slavery (2) and the concept of race (3) intersect with gender (4) to construct a distinct notion of science and technology that has been historically marginalized at best. The particular aspect of "science" that I explore is the development of the medical specialty of gynecology (5) in the United States. I specifically look at "technology," historically referred to as Sims's (6) instruments, Sims's gynecological innovations (7), and Sims's inventions, (8) circa 1845-1849, which are still used today. I argue that the particularized and unique experiences of enslaved Black women have been traditionally viewed as extracting assets from her body in the form of a "crop of human labor" (9) in the historically referred to role as a so-called "breeder." (10) The focal point of this article is to explore a means to address the impact of continuing to tell the narrative on the development of the medical specialty of gynecology in the United States without the benefit of a "herstorical" lens. The reproductive and surgical exploitation meted upon three enslaved women, Anarcha, Betsey, and Lucy, among other un-named enslaved Black women, "othered" (11) their skin based upon a construction of "race," yet "samed" their bodies for purposes of extracting reproductive knowledge, surgical inventions, and innovations to benefit all women. (12) The story of Anarcha, Betsey, and Lucy is the marginalized story of how the laws of enslavement sanctioned medical experimentation and exploitation upon the bodies of Black women. I posit that the telling of Anarcha, Betsey, and Lucy's narrative (13) in medical schools will aid current efforts to attain cultural competency. (14) The bioethics (15) principle of truth-telling (16) is traditionally viewed from the doctor-patient relationship, however, existing racial and ethnic reproductive health care disparities mandate culturally competent training from a critical race feminist (17) perspective that suggest historical truth-telling in medical schools to students through the use of narrative (18) as a modality. …

Colorblind Diversity: The Changing Significance of "Race" in the Post-Bakke Era

Abstract: "If there is one lesson to be learned from our tragic experience in the Civil War and its wake, it is that the question of racial discrimination is never settled until it is settled right. It is not yet rightly settled." Chief Justice Earl Warren (1) "Thus, in the long effort to gain equality through integration, blacks have learned that white America will accommodate the interests of blacks and other racial minorities when and only when those interests converge with those of whites." Derrick Bell (2) INTRODUCTION In 1954, fifty-eight years after the Plessy v. Ferguson (3) decision, the Supreme Court was afforded another opportunity to revisit the "separate but equal doctrine" in Brown v. Board of Education of Topeka (Brown 1). (4) Brown I was a consolidation of five civil rights cases from the District of Columbia, Delaware, Kansas, Virginia, and South Carolina that attempted to change race relations in America by affording African Americans a piece of the pie. (5) A few other cases soon followed Brown I. In 1963, Goss v. Board of Education of Knoxville (6) proclaimed that any program that structurally appeared to maintain segregation would be held unconstitutional. (7) And in 1964, Griffin v. Prince Edward County School Board (8) announced that pretense integration of black children would also violate the Constitution. (9) Despite the Court's signature announcement of equality of "Negroes," (10) Brown I has not completely altered the inequalities of the past. For that reason, race-conscious policies instituted not only by admissions departments in colleges and universities but also in primary and secondary educational institutions are needed to level the playing field. Since Brown I, there have been a number of statutes, court cases and policies that have continued to struggle over the use of race-conscious policies in the goal for racial equality. (11) Title VI of the Civil Rights Acts of 1964, (12) the governing standard in Regents of the University of California v. Bakke (Bakke), (13) California's and the state of Washington's anti-affirmative action propositions, (14) and a number of judicial decisions regarding racial preferences are persistent themes in the continuing saga over the use of affirmative action and race-conscious programs. (15) Race-conscious programs were enacted for the most part to remedy past transgressions inflicted upon African American citizens and to help them overcome decades of discrimination. (16) The setting for the challenge to the few legal benefits afforded African Americans in higher education came in the Bakke case. (17) Unsurprisingly, in a narrowly split decision, Justice Powell announced that while separate benefits designed to attract and matriculate minorities were prohibited, affirmative action plans involving racial classification were permissible under the Fourteenth Amendment. (18) Ironically, however, what appears to be a permissive judicial decision actually signaled the downward spiral against legal considerations of racial diversity within higher education. In what follows, I will first argue that while Bakke preserved the possibility of race preference, its language of racial neutrality detached the law from the social and historical context of racial inequalities. The language on race is so neutral that it has allowed whites to argue that racial preferences constitute reverse discrimination under the law. (19) This same language that was once used to right past wrongs is now being used to support "white skin privilege." (20) Second, denying the social and historical context of governing standards like Bakke allows society to ignore that white preferences still exist. Because Bakke never erased white preferences, diversity must remain a key factor in our implementation of affirmative action programs. Finally, while Grutter v. Bollinger (21) reinforced the value of diversity in higher education settings, I contend that diversity is a variable that should be incorporated into affirmative action programs that extend to all levels of education. …

Legal Autopsies: Assessing the Performance of Judges and Lawyers through the Window of Leading Contract Cases

Abstract: I. INTRODUCTION The medical profession enjoys ah evaluative practice for elevating physician performance. It is the autopsy. Literally translated, autopsy means to see for oneself. The pathologist observes the condition of the deceased and compares it with the diagnosis and treatment. The profession treats as a given that errors occur during the course of treatment, a judgment supported by autopsy studies of the last several decades that expose a consistent error rate hovering at forty percent. (1) The autopsy has practical value: it identifies mistakes, assesses performance, and provides a feedback loop for correction and remediation across a wide swath of treatment. (2) The legal profession has nothing like it. Attorneys and judges perform at a low level of visibility. Assessment is possible but forbidding because studying the relevant documents--briefs, transcripts, and lower court records--is arduous and time-consuming. Data on the incidence of indisputable error, such as timely filing, proper choice of cause of action or remedy, citation of leading cases, and the like, is non-existent. Unlike the medical profession, competence is assumed and error deemed extraordinary. Judge Richard Posner stands virtually alone in calling for evaluation of judicial performance. "In dealing with the work of judges," he observed in 1990, we inevitably take much on faith. Appellate decision making in the American legal system is characterized by a high degree of uncertainty. This makes it difficult to assess a judicial decision without access, which often is itself difficult and time-consuming to obtain, to briefs and lower-court records, and without careful study of the precedents and the other sources of law at the time.... (3) Subsequently, Posner encouraged researchers to undertake studies of judicial decision making that would apply autopsy-like objective standards for evaluating performance. The most illuminating kind of critical study would compare the judge's opinion in some notable case with the opinion of the lower-court judge, the record of the case, and the lawyers' briefs and oral arguments, along with any internal court memoranda written by the judge, his colleagues, or his or their law clerks. The aim would be to determine the accuracy and completeness of the judge's opinion; whether it was scrupulous in its use of precedent; the value it added to the briefs.... A series of critical judicial studies would yield insights into the methods as well as the quality of the judge. (4) Judge Posner's call for judicial studies can be extended to attorney performance. A similar set of evaluative studies could focus on client representation--the extent to which error characterizes certain aspects of law practice and is subject to remediation. Such studies of judicial decision making and attorney practice open a door to a novel body of research, one that more accurately describes civil legal process and stimulates self-examination. A well-designed case study may produce representative findings that impact both practice and legal education, which tends to distance itself from law in action. Perhaps researchers cannot assess performance by legal professionals with the same certitude as pathologists performing an autopsy. Yet the analogy is apt. The legal profession has well-understood performance standards and specifications. Evaluative studies of the order suggested by Judge Posner do not presently exist. (5) There are, however, pockets here and there in the literature that can be culled for data on attorney and judicial performance. One small but fertile database contains the studies of leading contract cases. Contract case studies are distinctive in that they are the only cluster of case studies, other than torts, that make use of the trial record; (6) and, as noted above, assessment is not possible without access to the record. …

A "Great" Day for Academic Freedom: The Threat Posed to Academic Freedom by the Supreme Court's Decision in Garcetti V. Ceballos

Abstract: I. INTRODUCTION He claimed the terrorist attacks of September 11, 2001 were an "inside job," planned by United States government officials and the Central Intelligence Agency. (1) He cited reports from French daily newspaper Figaro and Radio France International that chronicled a meeting between an agent from the CIA and Osama Bin Laden two months prior to the attacks. (2) He stated that "fires could not have caused the collapse of the World Trade Center towers at free-fall speed," (3) but rather the destruction was brought about in a controlled demolition. (4) He believed that the Bush Administration had orchestrated the catastrophe "to justify military operations in Iraq." (5) And for his beliefs, they called for his job. In early June 2006, Kevin Barrett, co-founder of the Muslim-Jewish-Christian Alliance for 9/11 Truth (6) and a University of Wisconsin-Madison professor, articulated his views to conservative radio talk show host Jessica McBride and told her that he planned to discuss these views, along with the mainstream account of the 9/11 terrorist attacks, during one week of his class titled "Islam: Religion and Culture." (7) '"I always try to present all defensible sides of important issues. In this Islam course, I would present the dominant American interpretation of the so-called war on terror, as well as alternative interpretations, and let [the] students make up their own minds,' [Barrett] said." (8) However, despite Barrett's proclamation that he would not use his professorial pedestal to indoctrinate his students with anti-American propaganda, his remarks to McBride were met with calls for his termination. In a letter to Governor James E. Doyle and university administrators, 61 of the 133 Wisconsin state legislators condemned Barrett's "academically dishonest views" and demanded that the University remove him from its faculty for professing his "lies." (9) One of the most vocal lawmakers calling for Barrett's termination was Republican Representative Stephen L. Nass. (10) '"[The University] apparently ha[s] no limits to what can be taught in the classroom'.... 'Barrett has got to go,' Mr. Nass ... said. 'It is an embarrassment for the State of Wisconsin. It is an embarrassment for the university.'" (11) "Taxpayers are spending $1 billion a year on the University of Wisconsin, and my office is being flooded with calls and emails by people who are furious that their dollars are going to be spent teaching such falsehoods," Nass said. "If the university doesn't do something to stop this, then lawmakers will step in and try to deal with it. (12)" Barrett's remarks had so enraged the Wisconsin legislature that Nass and other legislators even went so far as to threaten that inaction on the matter could result in a cut in the University's public funding during the next budget cycle. (13) In essence, the Wisconsin legislators were threatening to force the University to fire the controversial professor merely because he had espoused beliefs many found abhorrent. Such threatened action brought concerns over academic freedom to the forefront of Barrett's situation, both on and off campus. The legislature's reaction left some of Barrett's colleagues on the Madison campus fearing the potential impact on academic freedom. (14)Donald Downs, a professor of political science, journalism, and law at the University and president of the Committee for Academic Freedom and Rights, (15) addressed his concern stating that no teacher should be precluded from teaching because of his views, no matter how radical. (16) '"You can't tell someone that they can't say these things because it's not what a moral person would think,' said ... Downs.... 'I'm a supporter of the war on terror. I'm offended by him having these beliefs. But it's censorship to say he can't say these things.'" (17) Dietram Scheufele, a professor of journalism and mass communication, echoed Downs's views, stating that the freedom of speech protected by the First Amendment becomes even more important when the viewpoint presented is one contrary to mainstream thought and that that "freedom [must] extend to the classroom" to allow professors to present all competing views on controversial issues. …

Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice

Abstract: I. INTRODUCTION In 1999, Frank Sander, a pre-eminent ADR scholar, was asked to evaluate the state of ADR. (1) His answer was that while "we've made amazing progress," we still "have a way to go." (2) One of his greatest concerns was about the long-term professional issues of ADR and mediation in particular. While there was an ample supply of people trained in mediation in 1999, there was not enough paying work for them. (3) Training courses were plentiful, but there were few mentoring and other job opportunities. Most people interested in mediation were advised to pursue their interest on a part-time or volunteer basis at night and over weekends, while keeping their day jobs. (4) To this day, making mediation a full-time career remains extremely difficult. Professor Eric Green, a law professor at Boston University and a successful commercial mediator, noted in a class lecture that there is "no career path in mediation." (5) For virtually all successful private mediators, mediation is a second or third career; most are in their fifties or older. (6) More interestingly, of those who decide to become mediators, eighty percent cannot make a living solely as mediators. (7) Aspiring mediators are constantly scrambling for work, but often must return to their old careers. (8) Fifteen percent "[keep] busy, make a [decent] living, but never quite break through." (9) The top five percent, however, are booked months in advance and can gross upwards of a million dollars per year. (10) This presents efficiency concerns regarding wasted resources on excess market entry and on mediation education, and distributional concerns regarding mediator income inequality. (11) In this article, I explore the market for mediators, in particular for mediators in private practice. (12) I argue that the private mediator market is similar to markets for entertainers or professional athletes, instead of the professional job markets from where many mediators are drawn; a few mediators at the top of the pyramid are wealthy, while the vast majority of mediators make little or no money. I explore possible economic explanations for why the market for mediators is a "winner-take-all market." Since mediation is not a licensed profession, there is little reliable data on how many Americans work as mediators, in what practice areas, and how much they earn, and even less empirical research. The data in this article is drawn from public sources--Bureau of Labor Statistics, American Bar Association, Association for Conflict Resolution, and court mediator rosters--and from surveys and interviews conducted with ten successful mediators and dispute resolution scholars in private practice. (13) The interviews were conducted either by telephone or by e-mail in March and April 2008. Because of limited data, the article does not provide complete empirical answers, but rather asks questions to be explored further in the future. II. THE MARKET FOR MEDIATION SERVICES AND FOR MEDIATION PROVIDERS The market for mediation has significantly grown and matured over the last thirty years. Data about the market for mediation services and for mediation providers suggests that supply exceeds demand. More mediators want to enter the market than there are mediation jobs. This section presents data on the two different markets and on the different types of job opportunities for mediators. A. Mediation Services There is not one single market for mediation services in the United States. Markets differ jurisdictionally--i.e., markets in states where courts can and frequently order the parties to mediate and those states where courts do not have that authority differ markedly--and based on type of mediation--i.e., community mediation, which evolved outside the courts, and private mediation, including domestic, small claims, and commercial mediation, which is often either court-mandated or conducted in the shadow of litigation. …

The Adaptive American Judiciary: From Classical Adjudication to Class Action Litigation

Abstract: Beginning primarily in the late-twentieth century, the American legal system underwent several rather dramatic changes in procedure and practice. In particular, class action litigation has become one of the distinguishing features of our legal system and it remains one of the most politically controversial areas of law. This article outlines recent fundamental changes in the American legal system by examining several prominent legal models suggested by scholars. It also specifically evaluates the class action device by theoretically analyzing several widely expressed concerns. Although these concerns are sensible, the history of the American legal system has demonstrated its remarkable adaptability and a careful analysis of specific concerns suggests some promising solutions, several of which have already resulted in considerable improvements. INTRODUCTION The American judiciary, particularly during the past several decades, has critically impacted our sociopolitical landscape. Federal courts have profoundly influenced nearly every major policy issue, including civil rights, women's issues, criminal punishment, health care, education, environmental regulation, corporate conduct, and consumer protection. Although a great deal of public discourse focuses on the policy issues themselves, legal scholars have identified fundamental changes in the formal structure and procedures of the courts as an underlying impetus of legal and political developments. The purpose of this article is to provide a historical framework for evaluating developments in the American legal system and to demonstrate its remarkable versatility in resolving persisting institutional and procedural issues. In particular, this paper synthesizes existing scholarly literature on legal models and the major developments of the American legal system and evaluates claims regarding a relatively recent development--class action litigation. Part I presents the concept of a legal model and comments on its purposes and inherent limitations. Part II discusses the six most prominent legal models, in roughly chronological order, and then briefly identifies other trends and variations in the American legal system. Part III redirects the discussion to class action litigation and offers a brief history of the class action device. Part IV analyzes some of the most important concerns expressed by scholars regarding the potential consequences of class action litigation. Part V concludes the article by advocating a cautious but nevertheless optimistic reception of appropriate forms of class actions. I. THE CONCEPT OF LEGAL MODELS In the social sciences, a model is a simplified, often graphical, representation of the essential process of a particular variable or institution at a single point in time. (1) Legal scholars frequently use models to describe the functions and processes of the legal system. In this scenario, a legal model deliberately captures the most essential components of the legal system in an attempt to account for the majority of outcomes. Most research that deals with legal models, however, fails to explicitly recognize their purposes and inherent limitations. Understanding the following basic qualities of legal models is critical to interpreting and applying them correctly. First, a legal model is a simplified description of the legal system. (2) It deliberately attempts to capture the essential features (3) of a system while excluding its insignificant features, thereby helping scholars to understand the most important system outcomes. Second, a legal model generalizes the fundamental components of the legal system. (4) In other words, legal models do not attempt to precisely describe the underlying process of every case in the system; rather, they explain how the system generally works, in most cases. Again, its fundamental purpose is parsimony--or the ability to describe a phenomenon economically. …

Understanding Race: The Evolution of the Meaning of Race in American Law and the Impact of DNA Technology on Its Meaning in the Future

Abstract: I. INTRODUCTION Race has played a decisive role in nearly all aspects of American society, yet its meaning in various contexts remains unclear. Throughout history, individuals have struggled to define "race" as it pertains to science, society, and the law in particular. (1) Although race became a part of the English language in the mid-sixteenth century, it did not take on its modern definition until the early-nineteenth century. (2) Scientific, social, and political interpretations of race have gone through an evolutionary process as well. (3) After over two-hundred years of trying to understand its meaning, "[t]he word 'race' defies precise definition in American law." (4) Countless competing theories exist as to the definition and meaning of race, and the inability for one to earn universal support poses a significant problem to the American legal system. (5) Despite the fact that numerous statutes have been enacted to prohibit racial discrimination throughout all aspects of American society, "the law has provided no consistent definition of race and no logical way to distinguish members of different races from one another." (6) It has been argued that "race" was first used as a tool to classify individuals during the age of colonial exploration; (7) however, this use was maintained for centuries. Today, classifications based on race are still present in America, and have been found to be permissible in some instances, such as when used to remedy instances of past discrimination. (8) With the predominant role race continues to play in American society, to ensure that all are treated fairly under the law, it is imperative that a single definition of race is applied universally to all Americans. It is foreseeable that advances in science, particularly in DNA testing, will allow for a uniform method of determining one's race. (9) This note will discuss the current lack of a settled definition of race in American Law, and the potential role DNA technology can play in remedying the problems associated with it. Part II of this Note will explore the concept of race by examining various definitions of race and how they have evolved into the modern definition. This section will additionally look at the historical understanding of the meaning of race, and the recent divergence from traditional thought. Part III of this Note will analyze the role of race throughout American legal history. This portion of the Note will address historical notions of race in America, the origin of the need to define race, and the treatment of race by the legislature and the courts. Part IV of this Note will discuss current DNA technology and the potential impact it may have of on modern concepts of race, particularly with regard to the law. It is foreseeable that advances in DNA technology will allow scientists to identify and classify individuals through an analysis of their genetic information. II. THE CONCEPT OF RACE Over the course of the past three-hundred years, common definitions and theories on race have gone through an evolutionary process. This evolution of "race" can be seen in a variety of ways, one of which is a simple analysis of dictionary entries for the word "race" over the course of time. (10) Historians, anthropologists, and social scientists alike all have re-examined their understanding of the meaning of race, as both biological and social theories on race have developed over time. (11) Ultimately, a variety of opinions on race have grown to reject theories of race based in biology, and have reconceptualized race as a cultural category or social construct. (12) A. Race Defined Part of the difficulty in understanding the meaning of race can be attributed to the various definitions given to the word. The definition of race, as found in dictionaries, has evolved prior to reaching its current general definition. (13) As was argued by the respondent in St. Francis College v. …

The Good, the Bad, and the Future of Nicholson V. Scoppetta: An Analysis of the Effects and Suggestions for Further Improvements

Abstract: I. INTRODUCTION "Daddy I'm hiding in the closet. Why do you drink? Why do you hurt Mommy? I saw her crying. I saw her bleeding. Daddy I'm hiding under the covers. Why do you scream? Why do you hurt Mommy? I saw you. Through the crack in the door. Daddy I saw her with bruises. I saw her lying. Daddy. Please don't hurt my Mommy." (1) In recent years the negative effects children experience as a result of exposure to domestic violence has been a widely discussed topic. But before suggesting these children be removed from their families, consider this mother's description of the condition of her children when they were returned to her after being removed to foster care: The children were in poor health.... [They] 'were not the same [children] I gave [to foster care].' ... ... [I] took them to the nearby hospital emergency room.... [A]ll were regurgitating and both of the youngest children had ear infections.... [T]he youngest child also [had] ... a festering facial infection. (2) Another mother described the following: "Destinee had a rash on her face, yellow puss running from her nose, and she appeared to have scratched herself. Her son had a swollen eye.... because the foster mother had slapped his face." (3) Another mother described the following: '"[t]hey have been missing classes because their foster mother is unable to get them to school on time'[;] ... 'the foster mother has refused to provide house keys to the children and they have been locked out of their foster home repeatedly."' (4) Her daughter described the time in foster care as '"very uncomfortable;' the foster mother 'treated us like we were criminals' [and we] were locked in the house without access to the telephone when the foster mother would leave." (5) And consider one more mother's account: [Now,] [h]e's very attached to me. He screams [whenever] I even walk in the other room. He thinks that I am leaving. Every time the doorbell rings he gets hysterical. Especially when we go to my mother's house, he latches on to me. He won't leave my sight and he says I don't want to stay here. I want to go home with Mommy. I think he's very afraid to be away from me ever again. (6) These disturbing accounts are far from rare; in fact, all of the preceding accounts came from just the plaintiffs in Nicholson v. Williams. (7) This article will discuss the case Nicholson v. Scoppetta (8) from the perspective that it is almost always better to keep the mother (9) and her children together and remove the batterer instead. There was a great deal of scholarly writing (10) about this case immediately following the Court of Appeals decision, but this article, written over three years later, will examine how the Administration for Child Services (ACS) (11) and the lower courts have responded, and make suggestions for further improvement. Section II will discuss background information on (1) child abuse; (2) the effects on children from exposure to domestic violence and removal to foster care; (3) ACS policy prior to Nicholson Scoppetta; and (4) New York case law prior to Nicholson Scoppetta. Section III will discuss the procedural history of Nicholson v. Scoppetta and how it changed New York law in the area of removals in neglect cases. Section IV will discuss the positive effects Nicholson v. Scoppetta has had, and the problems that still remain to be solved. Section V will suggest four methods of attacking these remaining problems: (1) malicious prosecution claims against ACS; (2) provision of additional services by ACS to victims of domestic violence and their children; (3) requiring courts to follow Nicholson v. Scoppetta's instructions and weigh the harms of removal with the harms of remaining in the home, in each individual case; and (4) holding the batterer accountable. Section VI discusses how Nicholson v. Scoppetta has been cited and applied in other jurisdictions. …

Laying Down the Law: Post-Racialism and the Deracination Project

Abstract: During the run-up to the 2008 Presidential election, the following essay by Tim Wise was widely circulated on the web and by email. At least half a dozen friends emailed it to me: For those who still can't grasp the concept of white privilege, or who are looking for some easy-to-understand examples of it, perhaps this list will help. White privilege is when you can get pregnant at seventeen like Bristol Palin [Sarah Palin's daughter] and everyone is quick to insist that your life and that of your family is a personal matter, and that no one has a right to judge you or your parents, because "every family has challenges," even as black and Latino families with similar "challenges" are regularly typified as irresponsible, pathological and arbiters of social decay. White privilege is when you can call yourself a "fuckin' redneck," like Bristol Palin's boyfriend does, and talk about how if anyone messes with you, you'll "kick their fuckin' ass," and talk about how you like to "shoot shit" for fun, and still be viewed as a responsible, all-American boy (and a great son-in-law to be) rather than a thug. White privilege is when you can attend four different colleges in six years like Sarah Palin did (one of which you basically failed out of, then returned to after making up some coursework at a community college), and no one questions your intelligence or commitment to achievement, whereas a person of color who did this would be viewed as unfit for college, and probably someone who only got in in the first place because of affirmative action. And finally, white privilege is the only thing that could possibly allow someone to become president when he has voted with George W. Bush 90 percent of the time, even as unemployment is skyrocketing, people are losing their homes, inflation is rising, and the U.S. is increasingly isolated from world opinion, just because white voters aren't sure about that whole "change" thing. Ya know, it's just too vague and ill-defined, unlike, say, four more years of the same, which is very concrete and certain. White privilege is, in short, the problem. (1) The essay struck a chord with a segment of the electorate who perceived not only a racial double standard in the American public's interpretation of that election cycle but who I believe also felt that this episode crystallized a much larger racial double standard in American society as a whole. It was also a kind of collective light-bulb-moment about the law in some respects: how could nearly sixty years of civil rights law since Brown v. Board of Education have had so little apparent impact on white privilege and have produced so little critical white race consciousness? (2) Had civil rights and anti-discrimination law--surely aspects of the social construction of race--actually contributed to this state of affairs, such that the racial double standard made plain in the presidential election had been to some extent enabled by the very law designed to undo race discrimination? If racial justice is about remembering racial injury, had our law made that memory impossible, erased by official colorblindness? (3) And why was this all happening--who precisely benefits? Though Barack Obama of course went on to be elected President, the vivid memory of reading Wise's essay remains and disrupts my post-election euphoria. (4) Wise interpreted a basic truth of American society. He captured a central paradox of American life: that, despite having no biological/genetic basis, race nonetheless controls the American perception of reality, and whiteness is the lens through which all interpretation ultimately is refracted. Because whiteness is largely invisible to white Americans, America's racial problem has for the most part been understood by whites as a problem of (real or imagined) black grievances. …

The New York State Comptroller as Sole Trustee of the Common Retirement Fund: A Constitutional Guarantee?

Abstract: I. INTRODUCTION In New York State, members of state and municipal pension funds enjoy a constitutionally protected right to their pensions. (1) As a result, if the pension fund were to see a devastating diminution of any kind, taxes statewide could skyrocket to meet this constitutional guarantee, since an ailing fund would need to seek assistance from the state legislature to meet its constitutional obligations. Many of the pension benefits guaranteed by this clause are drawn from the state's Common Retirement Fund (CRF)--a $156 billion fund (2) managed by the state comptroller as sole trustee. (3) This structure is unusual; most comparable public pension funds are managed by boards of trustees. (4) For decades, critics and reformers have expressed concerns that a statewide elected official acting as sole trustee of such an enormous fund used to pay constitutionally guaranteed benefits is a recipe for abuse. (5) In fact, in many instances in New York State and elsewhere, pension fund fiduciaries have abused their authority and used pension fund business for personal and financial gain. (6) The performance of public pension funds is also a recurring topic of scrutiny in the legal and financial academic disciplines. (7) There is evidence that public funds do not perform as well as their private counterparts, and although this can be explained in part by lower tolerance for risk, many commentators also suggest that poor performance is caused or exacerbated by inappropriate political influences. (8) For decades commentators have discussed problems involved with management of public funds by elected officials, concerned that "[t]he most obvious conflict of interest is that of the government official" who "would have compelling personal, political, and governmental reasons for favoring an investment of pension funds." (9) The status of the comptroller as an elected official, his or her role as sole trustee of the fund, the size of the Common Retirement Fund, and the fact that it exists to fund a constitutionally protected benefit all work together to emphasize the importance of an earnest and ongoing conversation in state government about CRF governance, including the comptroller's role as sole trustee of the fund. The respective roles of the legislature and the comptroller must be addressed as part of any movement toward retirement fund reform. The comptroller's role as sole trustee is clearly laid out in statutory language, but there is some controversy as to whether the sole trustee model is itself guaranteed by the state constitution, which also grants the legislature the power to "define the powers and duties" of the state comptroller. (10) In light of recent scandals, some critics have raised the prospect of reorganizing the fund to include a board of trustees; as a result many news reports have asserted, without analysis, that a constitutional amendment would be required in order to alter the sole trustee model of the Common Retirement Fund. (11) Some of these reports bemoan the difficult process of amending the constitution and discount the prospect of creating a board, referring to the harsh "[p]olitical realities" of the "lengthy and politically daunting" constitutional amendment process. (12) Others call for the change even if it requires a constitutional amendment because they see the problem as so pressing. (13) It is certainly not so clear, however, that a constitutional amendment would be required; indeed it appears that legislation could be enacted to make the change without running afoul of the constitution. The purpose of this Comment is to discuss the history and function of the New York State Constitution's nonimpairment clause and address whether it dictates the State Comptroller's role as sole trustee of the Common Retirement Fund. The Comment will discuss some of the events that have caused the decades-old call for reform of the Office of the State Comptroller, and will also briefly survey some of the arguments in favor of alternative approaches to investing the CRF. …

A Strategy for Judicial Performance Evaluation in New York

Abstract: New York has experienced a loud and tumultuous decade with respect to the selection of its state and local judges. In 2006, the system of partisan nomination of candidates for election to the trial court bench was declared unconstitutional on First Amendment grounds, (1) causing the state legislature to argue over the future of the selection process until the United States Supreme Court reversed the decision in January 2008. (2) At about the same time, studies revealed that the voting public knows very little about the judicial candidates on the ballot, causing actual voter turnout in most judicial elections to hover near twenty percent. (3) And just recently, the nominating process for an opening on the state's Court of Appeals, spurred by the retirement of Chief Judge Judith Kaye, was criticized for producing a group of finalists that lacked sufficient diversity. (4) These developments share two common threads. First, and most obviously, they call attention to the importance of establishing a credible, fair, and trusted judicial selection process for every court in New York State. But as importantly, these events underscore the need for decision-makers and the public to have complete, reliable, and relevant information about judges and judicial candidates. Informed voters are more likely to cast ballots in judicial elections, and to make better choices when they do. Informed nominating commissions are more likely to present slates of quality judicial nominees. And an informed public should have greater confidence in its judges. Unfortunately, existing mechanisms in New York lack both the depth and breadth to provide information on judges and judicial candidates in a truly meaningful way. This need not be the case. Across the country, states have adopted judicial performance evaluation (JPE) programs that provide continuous, comprehensive assessments of the skills that each judge or judicial candidate brings to the bench. (5) In this essay, we describe how JPE programs work, consider what lessons those programs offer for judicial screening and judicial selection in New York, and explain how both the citizens and judges of New York would benefit from an official, comprehensive JPE program. I. THE VALUE OF JUDICIAL PERFORMANCE EVALUATION--A NATIONAL PERSPECTIVE JPE programs began in the mid-1970s as a mechanism for reviewing sitting judges' skills and abilities related to the process of adjudication. (6) Prior to that time, the only organized evaluations that existed in any jurisdiction were bar polls, which ran the risk of devolving into popularity contests or political gauntlets. (7) Rather than address specific case outcomes, which are properly the province of appellate courts or policymakers, JPE programs focus on qualities that would be expected of any judge, such as even-handed treatment of litigants,s To date, approximately twenty states and the District of Columbia have established a formal program to evaluate sitting judges, (9) and several more are on the way. Since 2007, state-authorized JPE programs have been introduced in Illinois, Kansas, and Missouri, pilot programs have been run in North Carolina and Washington, and JPE has been the subject of careful and intense study in Minnesota and Nevada. (10) While the precise format of JPE programs varies by state, the most comprehensive programs all feature five elements: (1) the evaluation of sitting judges at regular intervals; (2) evaluations conducted by an independent, balanced commission; (3) evaluation criteria related strictly to the process of judging rather than individual case outcomes; (4) collection of a broad and deep set of data on each judge; and (5) public dissemination of evaluation results. (11) By "independent, balanced commission," we mean a commission composed of both attorneys and non-attorneys, appointed to staggered terms by different branches of government or segments of the community. Studies have shown that the input of lay citizens in the evaluation process is valuable both for the credibility of the evaluations--after all, judges are ultimately accountable to the public they serve--and for the citizens themselves, who gain a deeper appreciation of the challenges judges face. …

Is the New York State Court of Appeals Still "Friendless?" an Empirical Study of Amicus Curiae Participation

Abstract: INTRODUCTION Amici--because they have a wider perspective, or simply a different perspective--can be of inestimable value to courts in discharging their responsibility that extends beyond the litigants. An amicus can alert the court, as the parties perhaps cannot or would not wish to, that a large issue lurks in an appeal; that a case of seeming insignificance has potentially wide ramifications and will likely have major impact when a ruling is applied in other factual settings; or that a case of obvious major significance could conceivably have wholly unanticipated effects. Amici can sensitize the court--when it may be irrelevant to the litigants, whose objective is to win--to the appropriateness of narrowing or limiting a holding, and with other factual situations in mind they can suggest alternate rationales for achieving results urged by the parties. Judge Judith S. Kaye (1989) (1) The New York State Court of Appeals decides a wide range of significant statewide issues which have long-lasting effects on the citizens of the State of New York. Similar to the United States Supreme Court in the federal arena, the primary function of the Court of Appeals is "declaring and developing an authoritative body of decisional law for the guidance of the lower courts, the bar and the public." (2) During any given year, the court decides appeals involving state and federal constitutional law, administrative law, products liability law, environmental issues, zoning matters, rent cases, criminal cases, and tort issues, among many others. Based on this amount of authority, one would expect that non-parties would choose to advocate before the court if there was any mechanism to influence the decision-making process. In fact, there is such a mechanism available: the amicus curiae brief. Through this form of participation, non-parties to appeals are able to engage the court by submitting briefs as amicus curiae, or as a "friend of the court." (3) As of 1989, however, the court has been notably "friendless." (4) In 1987, the Court of Appeals decided 369 appeals of which only thirty involved amicus briefs. (5) The U.S. Supreme Court, by contrast, consistently decides individual cases in which dozens of amicus briefs are filed. (6) In fact, in 1989, the Court heard one case, Webster v. Reproductive Health Services, (7) in which more amicus briefs were filed than during the entire term of the New York State Court of Appeals. (8) Over the past fifty years, the federal court system has seen a clear and rapid influx of amicus curiae submissions. (9) Whereas between 1946-1955 the percentage of cases decided with at least one amicus brief was only 23% in the U.S. Supreme Court, that number jumped to over 85% of cases between 1986-1995. (10) The disparity in the number of filings becomes even more surprising considering the Court of Appeals' policy towards amicus briefs. Not only have individual judges encouraged the practice, (11) but the court has expressed interest in amicus filings by amending its rules to enable it, sua sponte, to invite submissions. (12) In December of 1988, the court even added a preamble to its weekly list of new filings which encourages the submission of amicus briefs. (13) Moreover, the court overwhelmingly grants motions for amicus curiae relief. (14) Not everyone would identify the lack of amicus curiae participation in the court as a negative. Perhaps unsurprisingly, judges have not hesitated at expressing their opinions concerning the value of amicus briefs. Judge Posner has lamented that the "vast majority" of amicus curiae briefs "have not assisted the judges," and are "an abuse" of non-party participation. (15) Justice Scalia, in reference to several amicus curiae submissions in one case, noted that "[t]here is no self-interested organization out there devoted to pursuit of the truth in the federal courts." (16) Justice Alito, however, has argued that "an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court's friend. …

La Migra in the Mirror: Immigration Enforcement, Racial Profiling, and the Psychology of One Mexican Chasing after Another

Abstract: Good morning, it is a pleasure to be here. I would like to thank Professor Anthony Farley, the editors of the Albany Law Review, and the Albany Law Journal of Science & Technology for inviting me in, and for all of you for being here this morning. I would like to spend my time this morning talking about racial profiling. Specifically, I plan to discuss one area of the law where racial profiling remains firmly embedded explicitly in several decades of U.S. Supreme Court jurisprudence. In the area of immigration law enforcement, racial profiling remains alive and well. I plan to address the implications, specifically, of race-based immigration policing in South Texas, where the vast majority of the population is of Mexican ancestry and where the Border Patrol heavily relies on agents of Mexican ancestry to enforce its race-based immigration policing calculus. I argue that in South Texas, the Border Patrol's reliance on Mexican-Americans to police the border creates a dichotomized intragroup racial divide that is destructive of the people who are charged with doing the policing, that is destructive of the people who are being targeted, and that is destructive of the very social fabric that has held the communities along the border together for generations. In the early and mid-1800s--to give a brief historical overview of this region--the Rio Grande River served as a unifying force for communities in this region. It was a source of commerce for the early communities that sprang up along both sides of the river. Back then, obviously, both sides of the river were part of the same country. After a lot of bloodshed, by the turn of the twentieth century, the Rio Grande had become firmly established as a political boundary between Mexico and the United States of America. (1) Nonetheless, it remained a largely porous border. Into this scene entered the Border Patrol. From its origins in the 1920s and the immediate aftermath of the Mexican Revolution-when unprecedented numbers of Mexican refugees entered what was, by then, the southwest of the United States of America--the Border Patrol's purpose has been to interfere with immigrants' endeavors to enter into this country. The agency's focus then was on the nation's southern border, and the focus has not changed since then. By the early 1930s, the Border Patrol was apprehending nearly five times as many suspected, undocumented people along the nation's southern border, as it was along the nation's Canadian border. (2) In those early years, the Border Patrol in Texas was comprised mainly of young gun slingers. (3) These were individuals who had been recruited from the Texas Rangers, the state police force, which, to say the least, did not have a very peaceable relationship with the Mexican population of South Texas. (4) The Border Patrol's charge, then, was to enforce immigration laws (5)--laws that from a very early period had embraced racism and by the turn of the twentieth century, were beginning to be imbued with a criminal aspect as well. In 1919, for example, Congress for the first time enacted a law requiring that everyone seeking to enter the country go through a formal admissions process, the predecessor of the admissions process that we all go through today anytime we want to enter into the country. (6) Ten years later, in 1929, Congress added another component to this, which was that failure to seek and acquire admission through the formal admissions process constituted a crime--it constituted a criminal misdemeanor--punishable by imprisonment. (7) These changes had a significant impact on the Texas border region, where generations of residents had gone back and forth across the river without regard to government regulation. The free flow of people across the river continued, only now their travels were either lawful or unlawful, depending on whether they complied with the government regulations. (8) Today, the Border Patrol maintains a constant presence in the Texas border region. …

A Tale of Two Debtors: Bankruptcy Disparities by Race

Abstract: I. INTRODUCTION Legal policy has long struggled with the issue of official neutrality in the face of racially disparate results. While the days of laws explicitly discriminating against people of color may be gone, the legal system as a whole has not attained perfect race neutrality. Scholars have offered evidence of this tension in disparate spheres such as criminal justice, employment, and education. This paper adds to that history by offering evidence of racial difference in the court system in an area in which such differences had not been posited before: bankruptcy filings. Such an addition to the debate is particularly timely given the current credit turmoil and heightened prominence of bankruptcy as a societal actor. When it amended the Bankruptcy Code ("the Code") in 2005, Congress sought to curb perceived debtor "abuse" of bankruptcy laws by pushing more debtors out of Chapter 7 and into Chapter 13. (1) The amendments thus deny some debtors Chapter 7's immediate and almost automatic (2) cancellation of debts, and instead thrust them into a Chapter 13 that requires the debtor to make exacting payments to creditors over a period of up to five years. (3) In so doing, Congress may have exacerbated racial disparity in bankruptcy relief. The data from this paper suggest that minorities who enter bankruptcy are far less likely than whites to receive a bankruptcy discharge. Part of this is simply because of the choice that debtors make. Black debtors, for example, are three times more likely to choose Chapter 13 than are white debtors. (4) Because the overall relief rate was only 23% for Chapter 13, (5) this means that blacks are disproportionately denied relief based on the bankruptcy chapter they choose. More worrisome is that the empirical data in this paper suggest that once minorities enter Chapter 13, they obtain bankruptcy relief far less often than do whites--the odds of a discharge are 40% lower for black or Hispanic debtors as compared to white ones, even after controlling for income, education, and employment. (6) In other words, Congress's recent amendments (7) have made it so that some minority debtors will no longer have the option of an immediate Chapter 7 discharge in which all races fare the same, (8) and must instead enter a long-term payment Chapter 13 in which their race may be a determining factor in whether they ever get a successful discharge. A numbers-based discussion of minority debtors' likelihood of relief is new to bankruptcy scholarship, and fills in the middle part of the three-part story of race in bankruptcy law. (9) Scholars have already shown that black and Hispanic families are far more likely to enter bankruptcy than are white families. (10) At least one critical factor in this seems to be predatory lending practices: even residents in high-income, predominately black neighborhoods are more than twice as likely to get subprime mortgages as are residents in low-income white neighborhoods. (11) Scholars have also posited that the type of relief offered by bankruptcy laws favors white debtors over black debtors, since whites disproportionately own the type of assets that bankruptcy protects, and blacks disproportionately have the types of debts that bankruptcy does not relieve. (12) This would leave minority debtors who obtain relief worse off than white debtors who obtain relief. Thus, the literature offers a picture of different races before and after bankruptcy. The data presented in this paper begin to tell the story of what happens to minority debtors while they are in bankruptcy--which chapter they choose and what happens to them while they are pursuing a discharge of their debts in Chapter 13. This paper thus informs the relationship between bankruptcy and race and, as such, fleshes out some larger issues surrounding race and the law. Until now, that debate lacked empirical information about what happens to different races once in bankruptcy. …

The King of New York Practice

Abstract: In rare instances, a person becomes such a presence in his or her field of discipline that serious consideration of a matter within that realm cannot be undertaken without reference to that person's body of work. For example, it is impossible to exclude the works of Darwin in any comprehensive discussion of evolution. No rendering of the history of baseball would be complete without mention of Babe Ruth, Hank Aaron, and Willie Mays. A colloquium on American literature would seem incomplete and shallow without some portion of the meeting devoted to Mark Twain. Over almost five decades, Professor David D. Siegel has achieved a similar status in his field of concentration, New York Practice, a subject synonymous with his name. It is virtually impossible to author a meaningful piece on this fascinating subject without reference to Professor Siegel's voluminous scholarship. Thousands of judicial opinions grappling with the broad array of thorny and weighty issues that arise under the umbrella of civil procedure make the point. These decisions, and the briefs that preceded them, cite to and rely heavily upon Professor Siegel's writings. Professor Siegel has certainly occupied the field of New York Practice. The field has also occupied him. Through his tireless, thorough, and precise work ethic, he has constructed an amazing number of monuments in the skyline of New York civil procedure. He is the author of the leading treatise in the field, New York Practice, (1) now in its fourth edition and with over 100,000 copies in circulation. Often referred to as "The Bible" by the New York bench and bar, this text is truly a landmark work in the field of civil procedure, being equally accessible and informative to judges, lawyers, and law students. Since 1977, he has been the sole author of the New York State Law Digest, one of the most widely read publications in New York legal circles. During the last thirty-two years, he has produced 375 consecutive monthly issues of the Digest. (2) This popular publication, which now contains four single-spaced pages analyzing Court of Appeals opinions, could not sufficiently house the reflections and commentary of such an active mind. Therefore, in 1993, Professor Siegel began constructing what would become another skyscraper in the panorama of New York law, Siegel's Practice Review, a monthly analysis of procedural developments in the New York courts. (3) Over fifteen years and 200 installments later, the Practice Review is must reading for judges and litigators in New York State courts, as well as CPLR junkies of all kinds, and is relied upon regularly by the bench and bar in making procedural law within the state. (4) The foundation for much of the above work began as far back as 1962, when Professor Siegel joined a small group of authors to publish the original set of McKinney's Consolidated Laws Practice Commentaries. Professor Siegel authored the original Practice Commentaries for CPLR Article 50 ("Judgments Generally"), CPLR Article 51 ("Enforcement of Judgments and Orders Generally"), and CPLR Article 52 ("Enforcement of Money Judgments"). (5) After the CPLR was enacted in 1963, the courts quickly began to rely upon these writings in resolving procedural issues during the statute's infancy. (6) Over the last forty-six years, Professor Siegel has assumed the authorship of the Practice Commentaries for several additional articles including CPLR Article 31 ("Disclosure"), (7) Article 32 ("Accelerated Judgment"), (8) and Articles 55 through 57 ("Appeals Generally," "Appeals to the Court of Appeals," and "Appeals to the Appellate Division"). (9) The Practice Commentaries are enormously insightful and provide some of the most detailed analyses of procedure available, positing and accurately forecasting numerous issues for the courts and litigants to consider. This wealth of inspection and observation demonstrate that, in the world of procedure, Professor Siegel's thinking starts where most of ours stops. …

The Tri-Chemical Cocktail: Serene Brutality

Abstract: INTRODUCTION "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." (1) On September 25, 2007, the United States Supreme Court granted certiorari in the case of Baze v. Rees to determine whether the chemicals and procedures currently used to implement lethal injection in Kentucky amount to "cruel and unusual punishment." (2) The death-row-inmate petitioners alleged that Kentucky's lethal injection protocol, which is nearly identical to all current lethal injection protocols in the United States, violates the Eighth Amendment because it risks subjecting the condemned to an excruciatingly painful death. (3) The Court rejected this claim, explaining that petitioners' evidence failed to demonstrate that Kentucky's protocol presented a constitutional violation. (4) Prior to this decision, the Court had not directly addressed the constitutionality of a method of execution since 1878 in the case of Wilkerson v. Utah. (5) In that case, the Court upheld the constitutionality of the firing squad, noting that the Eighth Amendment prohibits "punishments of torture." (6) Since Wilkerson, while not directly addressing the appropriate legal standard for determining whether a method of execution is unconstitutional, the Court, mostly in dicta, has made reference to varying standards ranging in terms of the amount and risk of pain permitted. (7) This left lower courts with little guidance as to which standard should be applied to the many lethal injection challenges filed since the Court's rulings in Nelson v. Campbell (8) and Hill v. McDonough, (9) which "cleared the path for legal challenges to the chemicals and procedures used in lethal injections." (10) As a result, the standards adopted by these lower courts often varied significantly from one another, making the ultimate determination of "cruel and unusual" one largely dependant on jurisdiction. As would be expected, this situation created growing uncertainty as to what the controlling law actually was. The decision in Baze was expected to quell this confusion with a singular legal standard. But although the Baze Court was forced to finally articulate such a standard, the standard that it did articulate in its sharply fractionated plurality opinion will likely do little to end the debate and cure the uncertainty surrounding modern, three-drug lethal injection. This Comment will argue that although lethal injection in the abstract may have the potential to be the most humane method of execution, the specific chemicals and procedures currently used in its implementation are inconsistent with the foundational principles underlying the Eighth Amendment's proscription of "cruel and unusual" punishment. Part I will briefly describe the origins of capital punishment, generally and in the United States, and explain how the passage of the Eighth Amendment marked the first official step in the nation's history away from the brutal and toward the humane. Part II will then demonstrate that this movement away from the barbaric has continued. It will trace the history of the major methods of execution used in the United States, showing that, historically, the nation's decisions to adopt certain methods while abandoning others were, and continue to be, rooted in the search for the most humane method available. Ultimately, it will show that although the Supreme Court has yet to hold any of these methods unconstitutional, the effective abandonment of the more brutal methods evinces the nation's growing intolerance of needless pain and suffering. Part III will briefly describe the basic lethal injection procedure, explain the chemical combination currently used by the majority of death penalty states, and address the main risk associated with the tri-chemical combination. Part IV will then examine certain aspects inherent in the current implementation of three-drug lethal injection that greatly enhance this risk. …

On Account of Race or Color: Race as Corporation and the Original Understanding of Race

Abstract: This Essay is a critique of constitutional and political discourse on "race." I argue that current equal protection doctrine operates under a conception of race that undermines rather than moves forward the goal of achieving racial equality. That understanding defines race solely or primarily as a physical trait or characteristic, and unjustifiably rejects other, more robust notions of race. I argue the notion of race as physical trait is inconsistent with the historical understanding of race that served as the basis for the Reconstruction Amendments. A careful examination of nineteenth and early twentieth century court decisions, decisions which include Plessy v. Ferguson (1) and Strauder v. West Virginia, (2) suggests that the framers of the Reconstruction Amendments and the Supreme Court Justices of that era thought of race, not as a physical trait, but as an entity with a corporate existence. In other words, they thought of race as corporation. Part I will critique current equal protection doctrine and argue that it has adopted a narrow and constitutionally problematic definition of race as physical trait. Part II will then examine the original understanding of race and discuss the concept of race as corporation. Part III will then examine the implications of the race as corporation concept for rethinking current equal protection doctrine. I Political and legal discourse about race is often confusing and bewildering because we often fail to fully understand that, as an "essentially contested concept[]," (3) "race" has no fixed, essential meaning and is thus subject to multiple definitions. (4) In the post-Brown, (5) late twentieth and early twenty-first century era, the unstated, default assumption in legal discourse was that race refers to a physical trait such as skin color, or an identity based on skin color. (6) But of course, race as skin color or as racial identity is not the only way to think about and conceive of race. Consequently, when we engage in racial discourse, confusion and misunderstanding are inevitable if we forget about the multidimensional nature of the concept of race. Too often, discursive actors assume that they hold the same assumptions about the meaning of race when in actuality, they hold related but different understandings. What's more, an actor will often use multiple definitions of race without being consciously aware that he or she is doing so. Current equal protection doctrine on race is conceptually and practically incoherent, in large part because there is an illusory consensus regarding the constitutional meaning of race. Thus, in Richmond v. Croson, Justices Sandra Day O'Connor and Thurgood Marshall seemed to agree that the Fourteenth Amendment was centrally concerned with the problem of race. (7) In her plurality opinion, O'Connor asserted that, "[t]he Civil War Amendments themselves worked a dramatic change in the balance between congressional and state power over matters of race." (8) While dissenting from O'Connor's opinion, Marshall nevertheless expressed his agreement with O'Connor's understanding of the Fourteenth Amendment, stating, "[t]he three Reconstruction Amendments undeniably 'worked a dramatic change in the balance between congressional and state power.'" (9) Yet, despite their agreement regarding the fundamental relationship between the Fourteenth Amendment and "race," Justice O'Connor voted to strike down a local government race-conscious affirmative action program as a form of invidious racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, (10) while Justice Marshall voted to uphold the race-conscious set-aside as entirely consistent with the Fourteenth Amendment Equal Protection Clause. (11) O'Connor and Marshall's disagreeable agreement over the relationship between "race" and the Fourteenth Amendment beautifully captures the essentially confused state of current equal protection doctrine on race. …

From the Civil War to the War on Terror: The Evolution and Application of the State Secrets Privilege

Abstract: I. INTRODUCTION On a warm July day in 1861, a Union spy named William Lloyd received secret orders from President Lincoln to infiltrate the southern states on a mission to ascertain Confederate troop positions, the plans of major fortifications, and other information which would be of benefit to the United States government. (1) For his services he was to be paid $200 a month, with his findings to be reported directly to the President. (2) One hundred and forty years later in the aftermath of September 11, President Bush would authorize the National Security Agency to conduct warrantless communications surveillance on persons with alleged ties to Al Qaeda and other terrorist organizations. (3) Though the circumstances of these two actions are decidedly different, their clandestine natures both invoke the issue of state secrets and the question of how courts are to proceed when the subject of litigation is a matter of national security. Given the current geopolitical climate and the advancing sophistication of intelligence gathering, an analysis of the state secrets privilege and its practical implications is increasingly relevant. II. THE BEGINNINGS OF THE STATE SECRETS PRIVILEGE IN AMERICAN LAW Although it would take some time for the state secrets privilege to develop its current scope and power, the case of Totten v. United States (4) marks the first general instance of its use in American jurisprudence. (5) As highlighted before, this case concerned a secret espionage agreement allegedly entered into between President Lincoln and William Lloyd during the Civil War. (6) Upon hearing the matter originally, the Court of Claims found that Lloyd did venture behind enemy lines where he remained for the duration of the war, and that over the course of his stay he transmitted information back to the President as directed under his contract, but that after the war's end he was only reimbursed for expenses. (7) Lloyd subsequently died and Mr. Enoch Totten brought suit on his estate's behalf to recover the compensation allegedly owed under the secret contract. (8) In affirming the Court of Claims' dismissal of the action, the Supreme Court recognized the power of the President to enter into such contracts, but expressed its concern with the dangers litigation of its contents might bring. (9) Writing for the Court, Justice Field held: Our objection is not to the contract, but to the action upon it in the Court of Claims. The service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely, and was to be communicated privately; the employment and the service were to be equally concealed.... This condition of the engagement was implied from the nature of the employment, and is implied in all secret employments of the government in time of war, or upon matters affecting our foreign relations, where a disclosure of the service might compromise or embarrass our government in its public duties, or endanger the person or injure the character of the agent. If upon contracts of such a nature an action against the government could be maintained in the Court of Claims, whenever an agent should deem himself entitled to greater or different compensation than that awarded to him, the whole service in any case, and the manner of its discharge, with the details of dealings with individuals and officers, might be exposed, to the serious detriment of the public. (10) The Court then ruled that [i]t may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated. (11) Totten's lawsuit was dismissed not because it had disclosed confidential information, but because it had the mere possibility of doing so. …

The Forum Non Conveniens Motion and the Death of the Moth: A Defense Perspective in the Post-Sinochem Era

Abstract: I. INTRODUCTION "As a moth is drawn to the light, so is a litigant drawn to the United States. If he can only get his case into their courts, he stands to win a fortune." (1) On March 5, 2007, the United States Supreme Court resolved the split among the circuit courts as to whether a federal court must first establish its own jurisdiction before dismissing a suit using the forum non conveniens doctrine. (2) Speaking for a unanimous Supreme Court, Justice Ginsburg reversed the Third Circuit Court of Appeals' judgment, (3) holding that because the "resol[ution of] a forum non conveniens motion does not entail any assumption by the court of substantive 'law-declaring power,"' (4) a federal "district court has discretion to respond at once to a defendant's forum non conveniens plea, and need not take up first any other threshold objection." (5) Having returned an "arrow" to the district courts' "dismissal quivers," (6) Justice Ginsburg noted that "[t]his is a textbook case for immediate forum non conveniens dismissal" because determining "subject-matter jurisdiction presented an issue of first impression in the Third Circuit" and determining personal jurisdiction would have required extensive discovery "burden[ing the defendant] with expense and delay." (7) Under the federal doctrine of forum non conveniens, a court may dismiss a case where the inconvenience of the selected forum to the defendant and the court significantly exceeds its convenience to the plaintiff. (8) Given the Supreme Court's opinion in Sinochem International reaffirming the discretionary power a trial court wields in exercising this common law tool, it is incumbent on the parties litigating a dispute to have a full-fledged and working knowledge of how to facilitate a trial court in arming, or disarming, their proverbial bows with a forum non conveniens arrow. This Note will primarily address this topic from a defense counsel perspective; the insights offered, however, can be invaluable to the plaintiffs bar as well. While offering a descriptive view of the current state of the forum non conveniens doctrine, chiefly within the Second Circuit, the author will, on occasion, reference scholarly works by other authors who offer either their critiques or normative judgments of the doctrine; but it should be kept in mind that the aim of this Note is practical, not critical. Because of forum non conveniens' continuing application in federal cases, for the most part, where the alternative forum is abroad, this Note will assume a situation where a foreign plaintiff has brought suit against either an international or domestic defendant within the United States. (9) Also to be taken into account is that the case law adduced throughout this Note will be, for the most part, federal, and thus distinct from any common law or statutory enactments by the individual states of the forum non conveniens doctrine. (10) This Note will begin by exploring the history of the doctrine from its inception in state courts, to its formal recognition by the Supreme Court, and all of the way up to its present-day status. Next, this Note will examine the Sinochem International decision and delve into the practicalities and enduring problems that may arise, while proposing ideas that will expedite litigation on forum non conveniens dismissals. Lastly, this Note will focus specifically on cases brought within the Second Circuit. In so doing, the Second Circuit's standard will be reviewed both at the trial court and appellate court levels. In particular, this Note will examine how Second Circuit courts have addressed areas of the doctrine left open for interpretation by the Supreme Court as well as how its courts have finessed the Supreme Court's standard in the aftermath of Sinochem International. This last section will offer suggestions that defense counsel should consider both in advance of making a forum non conveniens dismissal motion and during the motion's consideration by the court; ultimately the goal will be to increase the prospects for dismissal and lessen the possibility of plaintiffs success upon an appeal. …

Cultivating Race: How the Science and Technology of Agriculture Preserves Race in the Global Economy

Abstract: In 2008, nearly one-sixth of the world's population went hungry. (1) The vast majority of the world's hungry live in the developing world; only a fraction of the under-fed are residents of the global North. (2) The burden of hunger falls disproportionately on the world's people of color who make up the majority of the population of the global south. (3) This inequitable distribution of hunger is not a geographic accident, but rather the result of the systems that have reified race and reinforced its construction through the centuries and across the continents. This Article will demonstrate that the way in which race developed and continues to be deployed is closely tied to how the world feeds itself and distributes its harvest, drawing links between the evolution of agricultural systems and technologies and the inequitable distribution of hunger and plenty along racial lines. The first Part of this Article focuses on the development of the historical relationship between race and agriculture. Part II demonstrates how race is currently deployed and supported by our global economic and agricultural food delivery system and the technologies we use to feed our planet's population. Part III draws conclusions about how agricultural technologies contribute to the evolving definition of race in the global system. Despite the hunger of nearly one-sixth of the world's population, there is no food production crisis in the world today. (4) Even as riots over grain and cereal shortages killed half a dozen people in Haiti during the summer of 2008, and riots over bread and cereal shortages roiled Egypt, Bolivia, and the Ivory Coast throughout last year, (5) the UN Food and Agricultural Organization reports that globally, 2008 marked the largest harvest ever recorded--5.3% more food was produced last year than ever before. (6) At the same time the UN is reporting a 5.3% increase in food production, it is also warning that forty-seven countries across the globe, twenty-seven of them in Africa, face severe food crises which will require immediate international attention. (7) If there is no food production crisis, how do we explain the chronic hunger and potential starvation of a sixth of the world's population? The answer lies in the way that access to food is controlled in the global economic and agricultural system. According to Nobel Laureate Amartya Sen, famine and hunger occur when people lack the ability to "establish ... ownership and command" over their own food and food supply. (8) While there is no food production crisis, nearly a billion hungry people leave little doubt that too few people in the global south have ownership and command over their own food supply. In this Article I will illustrate how ownership and command of food is racialized. One racial group, whites in the global north, has ownership and command of the world's food supply while the subordinate group, people of color in the global south, are denied ownership and command of their food supply. (9) This racial hierarchy is built on historic racial constructions and reinforces evolving ideas of race and racial hierarchy. I. THE RACING OF FOOD SUPPLY CONTROL IN HISTORY Both in peacetime and in times of war, food has been used as a weapon to control and disempower particular populations. In wartime, scorched-earth campaigns and sieges are used to defeat enemies and control the outcome of battles through control of the food supply. (10) More subtle forms of this kind of control are present in times of peace through the construction of complex social and economic relationships that use ownership and command of food to control groups. Outside of the context of war, complex social and legal relationships are created which allow command and ownership of food to become an effective tool for economic and social control of subordinate groups by dominant groups. Commanding access and ownership of food makes it possible to create a powerful imbalance of power between those with command of food, the feeders, and those who are denied ownership and command of their food, the fed. …

Shipping Up to Boston: The Voting of the Massachusetts Supreme Judicial Court in Nonunanimous Criminal Cases from 2001-2008

Abstract: I. INTRODUCTION Republican appointed justices became a super majority on the Massachusetts Supreme Judicial Court in 2001. (1) During his four years in office, Governor Paul Cellucci (R) was presented with the extraordinary opportunity to completely reshape the highest tribunal of Massachusetts. (2) In just two years, Governor Cellucci appointed four of the seven justices of the Supreme Judicial Court. (3) While not every one of Governor Cellucci's appointees was a registered Republican, all of his nominees shared a conservative judicial ideology that the governor favored. (4) In the three years prior to Cellucci's term as the Governor of Massachusetts, Governor William F. Weld (R) appointed three justices to the Massachusetts Supreme Judicial Court. (5) Two of those justices remained on the court after Governor Cellucci's appointments, creating a Republican appointed majority of six on the seven-member court. (6) In 1996, Democratic governors had appointed five out of the seven justices on the court. (7) In just five years, the Massachusetts Supreme Judicial Court had apparently gone from one ideological extreme to the other. This study is intended to demonstrate trends in how the Massachusetts Supreme Judicial Court decided non-unanimous or divided criminal cases over an eight-year period. This study aims to answer two questions about how those criminal appeals were decided. First, how frequently did the court and its justices side with the defendant in those cases? Second, how frequently did individual justices agree with their colleagues in those cases? The super majority existed during the first seven years of this study. In the last year of the study, the composition of the court changed slightly with an appointment of a justice by a Democratic governor. (8) Accordingly, this change in membership will also be explored to determine what impact this appointment had on the way that the court decides criminal appeals when the court is divided. The study will be organized as follows: Part II provides some background information on the Massachusetts Supreme Judicial Court, including general information regarding composition, tenure, and the appointment process. Additionally, a brief history of the membership of the court is provided. Part III describes the methodology utilized in this study. Specifically, it explains the reasoning behind examining only non-unanimous cases, how those cases were selected, and how the data from those cases was collected and analyzed. Part IV discusses how frequently the justices and court sided with the defendant in divided criminal cases. Part V discusses how successfully individual justices are in getting their colleagues to agree with their written opinions in these cases. Part VI discusses some recent developments and offers concluding remarks on the effect of the most recent appointment on divided criminal cases. Appendix A provides the complete findings from this study. Appendix B contains the observations and data collected from individual cases. II. THE MASSACHUSETTS SUPREME JUDICIAL COURT A. Generally The Massachusetts Supreme Judicial Court "consist[s] of six associate justices and one chief justice." (9) Only four justices need be present for a quorum necessary to decide all matters to be heard by the court. (10) The justices of the court "are appointed by the Governor [to] life terms," (11) but are subject to mandatory retirement upon reaching the age of seventy. (12) The Governor's Council must confirm appointees in order for them to take office. (13) The Governor's Council consists of eight members and the Lieutenant Governor. (14) The eight members are elected to two-year terms from special districts. (15) The legislature has no formal role in the judicial selection process, and has virtually no opportunity to influence the decisions of that process. (16) Outside rare newspaper articles, the selection process receives little attention in the legislature or the media. …

The Convenience of the Employer Test: Why We Should Reconsider the Critique of New York's Tax Apportionment Scheme

Abstract: I. INTRODUCTION In recent years, telecommuting has become increasingly popular in the United States. (1) An employee telecommutes (or "teleworks") when that employee is paid by his or her employer for work done at a location other than the employer's office. (2) Most often, this location is an employee's home. (3) Telecommuters often use laptop computers, additional phone lines, and handheld devices to complete their job responsibilities from outside the office. (4) As technology advances, opportunities to telecommute will continue to arise throughout the United States. Provided that an employer finds telecommuting to be an appropriate management technique for the company, employees elect to telecommute for myriad reasons, such as cutting commuting time, reducing living expenses, or simply wishing to be closer to the employee's family. (5) As telecommuting increases throughout the United States and across state lines, accurate methods of taxing telecommuters will become more important to individual states. States have substantial discretion to develop their own tax schemes, and many states have approached the tax treatment of telecommuters differently. (6) New York, however, has encountered significant criticism for the application of its tax scheme: the "convenience of the employer" ("convenience") test. (7) New York's convenience of the employer test derives its power from the interplay of several New York tax statutes and tax regulations. Section 601(e)(1) of the New York tax law taxes all income "which is derived from sources in this state." (8) Section 631(c) of the tax law adds: If a business, trade, profession or occupation is carried on partly within and partly without this state, as determined under regulations of the tax commission, the items of income, gain, loss and deduction derived from or connected with New York sources shall be determined by apportionment and allocation under such regulations. (9) The relevant tax regulation to which the tax law refers is section 132.18(a) of Title 20 of the Codes, Rules, and Regulations of New York. (10) Section 132.18(a) states that: If a nonresident employee ... performs services for his employer both within and without New York State, his income derived from New York State sources includes that proportion of his total compensation for services rendered as an employee which the total number of working days employed within New York State bears to the total number of working days employed both within and without New York State. (11) Since this language would create a simple physical presence apportionment formula, (12) the regulation further requires that "any allowance claimed for days worked outside New York State must be based upon the performance of services which of necessity, as distinguished from convenience, obligate the employee to out-of-state duties in the service of his employer." (13) Individuals who support an alternative method of taxation, the "physical presence" test, have severely criticized the convenience test. (14) States that employ this simplistic formula consider the number of days the employee physically worked within a state and tax the employee only on those days. (15) When states use this test, they surrender to the "state of physical presence" potential tax revenue from the days the employee worked in that other state. (16) For example, an employee ("EE") works for company X, which is based in state A, and lives in state B. If EE works 125 days at X's office in state A and 125 days at home in state B, then both state A and state B will each tax EE (at their respective state income tax rates) for working 125 days. Despite two rulings by the Court of Appeals upholding the constitutionality and validity of the convenience test, commentators and scholars have continued to criticize New York's approach to the taxation of telecommuters. …

Annoyancetech Vigilante Torts and Policy

Abstract: The twenty-first century has ushered in demand by some Americans for annoyancetech devices--novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this "revenge by gadget." Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions. I. INTRODUCTION: FASCINATING NEW AND TROUBLING VIGILANTE TECHNOLOGIES II. ANNOYANCETECH TORT CAUSES OF ACTION III. ANNOYANCETECH TORT DEFENSES A. Intentional Torts and Negligence Defenses 1. Traditional Intentional Tort Defenses 2. Traditional Negligence Tort Defenses 3. Analogical Self-Help Defenses B. Strict Liability Tort Defenses IV. PUBLIC POLICY CONSIDERATIONS A. The Historical Problematics and Uses of Vigilante Justice B. Twenty-First-Century Extreme American Neighborhood Trends C. Some Sociological Perspectives V. CONCLUSION I. INTRODUCTION: FASCINATING NEW AND TROUBLING VIGILANTE TECHNOLOGIES Technology is a two-edged sword: new machines, devices, processes, contrivances, appliances, tools, and gizmos can bring benefits; but there are negative consequences to boot. (1) Indeed, at one time the federal government funded an Office of Technology Assessment ("OTA") (now defunct) that studied new and emerging technologies and issued reports on how to manage and regulate these cutting edge tools. (2) It is fundamental, of course, that at least since the early years of the twentieth century, tort law has imposed liability on manufacturers, sellers, and users of products (whether new or old). Under theories of warranty, intentional torts, negligence, and strict liability (of one sort or the other), tort law has awarded damages to victims of technology gone awry or misused. (3) A beguiling recent development, however, raises interesting legal questions. In an August 2007 Wall Street Journal article, innocuously placed in the "Weekend Journal" section, readers learned of "the growing ranks of electronic vigilantes" who have started to deploy novel gadgetry to secretly fend off, punish, or comment upon annoying behavior of their fellow Americans. (4) "Thanks to the falling cost of microcontroller chips and the lure of easy online sales, inventors are turning out record numbers of gadgets. One growing subset of these inventions: products that help people neutralize antisocial behavior at the push of a button." (5) Who are the purveyors of these new anti-antisocial behavior contraptions? "The brains behind these devices range from entrepreneurs in suburban Los Angeles to graduate students at the Massachusetts Institute of Technology." (6) Some examples are illuminating: (1) "A Tennessee company has created a $50 device that shuts up other people's dogs by answering their barks with an ultrasonic squeal that humans can't hear," and is deceptively inserted in a backyard birdhouse; (7) (2) "British inventors are exporting a new product for people who hate lousy drivers--it's a luminescent screen that fits in a car's rear window and, at the driver's command, flashes one of five messages to other motorists" including "Back Off," "Idiot," "a sad face," a happy face and--not yet widely disseminated, but demanded by some purchasers of the screen--"offensive hand gestures"; (8) (3) MIT's Media Lab, which has coined the new word "annoyancetech" has developed a '"No-Contact Jacket' that, when activated with a controller, delivers a blast of electricity to anyone who touches the person wearing it"; (9) (4) the "Annoy-a-tron," designed for simple revenge by allowing a user to hide the device under the desks of one's enemies with the device emitting "a loud, piercing little beep"; (10) (5) a specially revamped iPod which silences annoying FM radio stations in taxicabs; (11) (6) "TV-B-Gone," "a $20 handset that allows people to shut off loud televisions in public places like doctor's offices and bars"; (12) (7) "cellphone [sic] jammers"; (13) (8) "the Mosquito,"--marketed by a firm called "Kids Be Gone"--which "emits high-frequency sounds particularly irritating to congregations of teenagers"; (14) and (9) an invention called the '"I-Bomb' that emits an electromagnetic pulse that disables all electronics in its range (a similar device was depicted in the movie 'Ocean's Eleven')" (15) and that, for instance, could be used to shut down a neighbor playing loud music on her stereo. …

A Safe Harbor for Drugs Made Offshore: The Federal Circuit Renders the Bolar Amendment Available in [Section] 337 Actions in Amgen V. U.S. International Trade Commission

Abstract: I. INTRODUCTION In April 2009 the U.S. Court of Appeals for the Federal Circuit rendered an important decision regarding U.S. patent holders' ability to block the importation of pharmaceuticals made overseas. (1) The case addressed a complex interaction of laws pertaining to the infringement of pharmaceutical-related patents and international trade regulation, and held that the International Trade Commission ("ITC" or "Commission") must determine whether the importation it is investigating, at the behest of a patent holder, is being done in pursuit of Food and Drug Administration ("FDA") approval of a pharmaceutical, before taking remedial action. (2) This paper discusses the decision in light of the legislation, legislative history, administrative action, and case law that shaped it. Part II discusses the Bolar Amendment of the Hatch-Waxman Act, a provision of patent law that exempts from patent infringement liability conduct done in pursuit of FDA approval of a pharmaceutical. In Part III, the role of the ITC in enforcing patent protection, as an alternative or adjunct to litigation in federal courts, is presented. Part IV discusses the Process Patent Amendments Act of 1988, which established patent infringement liability for the importation of the products of U.S. patents, subject to several safe-harbor provisions. In Part V, Federal Circuit precedent pertaining to the applicability of the safe harbor provisions of the Process Patent Amendments Act of 1988 to ITC actions, which set the stage for the controversy in Amgen III, is presented. Finally, in Part VI, Amgen III, as well as additional pending federal litigation, is discussed. In conclusion, Part VII articulates the current state of patent law as it pertains to importation and the pharmaceutical industry, in light of Amgen III. A suggestion is made that the decision in Amgen III is in keeping with recent Supreme Court precedent that the extraterritorial reach of U.S. patent law is limited absent express congressional intent. II. THE BOLAR AMENDMENT OF THE HATCH-WAXMAN ACT The Drug Price Competition and Patent Term Restoration Act of 1984, (3) also known as the Hatch-Waxman Act, was enacted to serve dual purposes in fostering patent protection for pharmaceuticals. (4) One purpose it served was to extend the term of patent protection afforded by the Patent Act for developers of new drugs. (5) Generally, the term of a patent's protection terminates twenty years from the date on which the application for it was filed. (6) Because a patent might not issue until several years after the application for it was filed, due to the time it takes the U.S. Patent and Trademark Office ("PTO") to examine a patent application, there is typically a period of market exclusivity from the time a patent issues to the time its term expires of between seventeen and twenty years. (7) Prior to the Hatch-Waxman Act, however, the actual period of market exclusivity for pharmaceuticals corresponded to a period of less than seventeen years. (8) Before entering the market, pharmaceuticals must undergo regulatory review for efficacy and safety by the Food and Drug Administration, which typically is not completed by the time a patent on the drug issues. (9) As a result, newly-patented pharmaceuticals generally do not enter the market until substantially more than three years after the filing of a patent application, meaning they are afforded less than the approximately seventeen-year term enjoyed by other patentees. (10) The Hatch-Waxman Act was intended to remedy this disparity by extending the term of pharmaceutical patent protection in accordance with the delay in market entry attributable to FDA review. (11) A second function of the Hatch-Waxman Act was to expedite the development and entry into the marketplace of generic pharmaceuticals. (12) As with original pharmaceuticals, the period of regulatory approval of generic drugs by the FDA delayed their entry into the market, typically until several years after the expiration of the terms of the original pharmaceuticals upon which they were based. …

Breaking Down Barriers: The Goodridge Decision and Modern Civil Rights

Abstract: Thank you for having me. I did not realize that the instructions were to talk about our hardest case, because I was led to believe that you wanted me to talk about our decision in Goodridge, (1) the same-sex marriage case, and then if I did not talk about that, I would be led from this room by the sheriff pretty promptly. Goodridge was neither my hardest case, nor was it my easiest, but I will talk about the case nonetheless. Before I get to Goodridge, however, let me say that the Massachusetts Constitution is a document that my court protects, and considers to be a constitutional template that must be interpreted and applied to meet with changing social and economic conditions. Our justices do not for the most part subscribe to an originalist point of view, and there's good reason for that. First of all, the Massachusetts Constitution was drafted by John Adams as its principal draftsperson in 1780, and precedes the United States Constitution by seven years. It is the oldest extant constitution in the western hemisphere. (2) And the decisions of the United States Supreme Court, as you well know, establish a federal standard, a kind of a minimum basis for what occurs throughout the whole country. This creates a floor, not a ceiling, leaving the states and the state courts to fashion other rules--other constitutional rules under their state constitutions. And that's very important on the part of the United States Supreme Court, because it recognizes principles of federalism, and the import of the Tenth Amendment that allocates a certain reservoir of power to the states. I am sure this is familiar to the students who have studied constitutional law. So, with that in mind, let me turn and walk you through what occurred in the Goodridge case, which was decided a little over five years ago. (3) It seems more recent than that, but the decision was made five years ago. The facts are fairly straightforward. We had seven same-sex couples who had been living in committed relationships for many years raising children--some biological children, some adopted children--who challenged the marriage laws on the basis that the laws violated certain provisions of our state constitution. (4) The defendant was the Department of Public Health who administers those laws. The court wrote five opinions: two in support of same-sex marriage and three in dissent. The decision I joined, which was written by the chief justice to create a four-judge majority, analyzed the problem this way: We recognized first that the marriage laws--and we are talking here about secular marriage, not, obviously, about religious marriage--were licensing statutes that perform a gate-keeper function ascertaining who meets the requirements necessary to receive a marriage certificate. (5) We realized further that we were dealing with the police power of the state when we talk about whether we could alter the arrangement that these statutes created. (6) And we further pointed out the countless benefits--in the hundreds, too numerous to mention--flowing from the fact that a person is married, so that the plaintiffs were being shut off from a number of state benefits and also a number of federal benefits. (7) With that in mind, the decision that four of us signed onto began with what is the usual constitutional analysis: the nature of the right at issue. And then if a classification is involved, what is the classification? And what kind of review are you going to apply to that classification? There were two Massachusetts constitutional provisions that we looked at. The first was substantive due process rights, and the second, of course, were equal protection concerns. Now, the United States Supreme Court, as far as I know, has not classified the right to marry a person of your choice as a fundamental right. I think they have--but there is some disagreement over that--but they've called it a vital right. …