Showing papers in "Albany law review in 2011"

Justice Denied? the Exceptional Clearance of Rape Cases in Los Angeles

Abstract: With homicide your victim isn't going to be interviewed; their trauma is over. In most property crimes sure there is trauma, your car was stolen. But nothing can compare to sexual assault. We don't get enough training in trauma, in dealing with the trauma of victims, and the when and how of interviewing them. It's a very unique crime that victims don't get over, and they definitely won't get over it as long as the perp is rolling around. --Detective, Los Angeles County Sheriffs Department. (1) I worked patrol for a long time and I was one of "those" officers. The key is not to get jaded and to realize that weird stuff does happen with regards to sex crimes. Patrol officers are our first line of contact for victims and once they [victims] have a bitter taste in their mouths it's difficult. Guys [police officers] are nervous to handle it because they don't know how to talk about it and are too embarrassed to say penis, etc. I'm not saying that women rule, because there are guys out there that are fabulous. But, fortunately or unfortunately, patrol has first contact [with victims]. --Detective, Los Angeles Police Department. (2) More often than not once they have [victims] gotten to the DA's office it's fairly rare and unlikely that they will not want to talk. They have no idea about the system and what we say means a lot. They take their cues from what we say. --Deputy District Attorney, Victim Impact Program, Los Angeles County District Attorney's Office. (3) I. INTRODUCTION Thirty-five years ago, Susan Brownmiller wrote in Against Our Will: Men, Women and Rape that the complaints of rape victims often were met with insensitivity and/or hostility on the part of police and other criminal justice officials. (4) Brownmiller noted that, contrary to Lord Hale's assertion that "rape is an accusation easily to be made," (5) many rape victims did not report the crime to the police, and that those who did soon discovered that, consistent with Lord Hale's homily, it was a crime "hard to be proved." (6) As we enter the second decade of the twenty first century, the issue of police and prosecutor handling of sexual assault complaints continues to evoke controversy and spark debate. (7) Critics charge that police make inappropriate decisions regarding whether rape cases should be accepted for investigation, misclassify rape and other sex crimes as non-crimes based on archaic notions of what constitutes "rape," unfound reports at unreasonably high rates, and fail to adequately investigate the cases they do accept. (8) Such critics also allege that prosecutors' assumptions regarding "real rapes" and "genuine victims" lead them to decline to file charges in cases in which it is clear that a sexual assault occurred but in which it also is clear that the odds of proving the case to a jury are low. (9) As Michelle Madden Dempsey put it in her testimony at a recent United States Senate hearing convened to investigate the response of the criminal justice system to the crime of rape, "the chronic failure to report and investigate rape cases ... is part of a systemic failure to take rape seriously both within the criminal justice system and within our communities more generally." (10) Missing from these critiques is any discussion of the use (and misuse) of the exceptional clearance by police. As we explain in more detail below, cases can be cleared, or solved, by the police in two ways: by the arrest of at least one suspect or by clearing the case exceptionally. Although cases that are exceptionally cleared do not result in the arrest of the suspect, they are considered solved in the sense that the suspect is known to the police but there is something beyond the control of law enforcement that precludes the police from making an arrest (e.g., the victim refuses to cooperate in the prosecution of the suspect, or the suspect has died or cannot be extradited). If police officers are clearing cases inappropriately--the rules for doing so are clearly articulated by the Federal Bureau of Investigation's Uniform Crime Reporting Handbook (11)--and are either failing to investigate sexual assault cases thoroughly or not making arrests when they have probable cause to do so and when the victim is willing to go forward with the case, there is the potential for a miscarriage of justice. …

An Integrated Justice Model of Wrongful Convictions

Abstract: I. THE INNOCENCE MOVEMENT II. TO THE INNOCENCE PARADIGM A. Before Innocence B. Innocence Comes of Age 1. Beginnings: The 1980s 2. Convergence: The 1990s 3. The Age of Innocence: The 2000s C. The Innocence Paradigm III. AN INTEGRATED JUSTICE MODEL OF WRONGFUL CONVICTIONS IV. CONCLUSION FIGURES Figure 1. Integrated Justice Model: Domains and Their Ideals Figure 2. Integrated Justice Model: Domain Institutions Figure 3. Integrated Justice Model: Domain Theories, Concepts, and Ideologies Figure 4. Integrated Justice Model: Core Domain Activities Figure 5. Integrated Justice Model: Innocence-Related Activities and Concerns INTRODUCTION There is a lot of noise about miscarriages. We attempt to understand what this noise is all about. (1) The inauguration by the Albany Law Review of an annual symposium issue dedicated to the subject of miscarriages of justice, which are criminal justice system errors, both recognizes and constructs the reality that a distinct subject area has emerged. (2) However this area is denominated--"wrongful convictions" or "innocence studies"--it not only fits within legal scholarship and teaching, but is an inherently interdisciplinary subject. That this inaugural issue is a joint project of the Albany Law School and the School of Criminal Justice at the State University of New York at Albany is conceptually important and personally significant. (3) As a lawyer and a graduate of the School of Criminal Justice, I will offer an interdisciplinary model of the innocence movement--the Integrated Justice Model ("IJM")--which complements, rather than supplants, the innocence paradigm that emerged from and has shaped the innocence movement. The IJM views wrongful convictions from a public policy perspective. (4) It offers a more complete picture of the policy environment of justice reforms, keyed to the specific concerns of the innocence movement, in the hope that such understanding will allow for better planning of justice system reform. Part I provides a brief overview of the innocence movement and the related issues of defining a wrongful conviction and estimating the size of the problem. Parts II A and B present a historical sketch of the innocence movement's development in the United States from a social constructivist perspective. Many law review articles describe the rise of the innocence movement in a flattened way before getting on to the meat of their studies. A simplified standard version of this history is that DNA happened, innocent prisoners were exonerated, and innocence projects sprung up. These accounts, in their brevity, downplay the role of human agency. The account herein explores the actions and inferred motives of key innocence movement actors. Their actions and writings created an intersubjective understanding of the innocence paradigm that shaped the movement. This perspective illuminates the agenda-setting and policy-driven nature of the movement. (5) Most accounts take the innocence paradigm for granted. I argue in Part II that the innocence paradigm was fashioned so as to bring together disparate elements of an innocence puzzle, viewed as causes of wrongful convictions, into a synergistic whole. As a human, intellectual construct, the innocence paradigm created a unified foundation and strategy for viewing wrongful convictions as an area for policy reform. This paradigm provided an intellectual framework for the innocence movement's policy agenda. The contours of the innocence paradigm are sketched in Part II C. Part III presents the IJM, which examines the policy landscape of the innocence movement. It draws a picture of the innocence movement's domains, and their ideals, institutions, actors, operating constructs, and problem areas. It is a heuristic device intended to make explicit the innocence movement's policy context. …

Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism

Abstract: Recent state statutes and constitutional amendments challenging federal health care legislation and other federal laws have attracted significant attention, both from critics who view them as nullification acts that are inconsistent with the Supremacy Clause and from some supporters who have been equally willing to embrace the nullification label for the purpose of defending such legislation. Upon closer examination, it becomes possible to view these measures as falling short of invoking the clearly repudiated doctrine of nullification and as capable of contributing under certain conditions to safeguarding federalism principles. An analysis of these recent assertions of state sovereignty--whether regarding health care, guns, drivers' licenses, or medical marijuana--can contribute to a better understanding of the range of opportunities for states to wield influence in the U.S. federal system by showing that state statutes challenging federal law can play a role, alongside of, and occasionally in place of, traditional mechanisms by which states can advance their interests in the national political process. ********** States have historically advanced their interests in the United States federal system through various mechanisms whose legitimacy and effectiveness are clearly established. (1) State officials have engaged in intergovernmental lobbying, individually and through organizations such as the National Governors Association, to frequent effect in shaping congressional legislation (2) and securing relief from administrative officials. (3) State officials have also filed suit against federal laws seen as exceeding the legitimate reach of congressional power with occasional success. (4) In recent years, states have gone beyond these longstanding mechanisms of state influence by enacting measures in direct opposition to federal statutes, as typified by the enactment of state statutes and constitutional amendments challenging the individual insurance mandate provision of the recently enacted federal health care legislation. (5) These state health freedom measures, along with firearms freedom statutes passed in various states, have attracted significant scholarly attention. (6) Many scholars have decried these state measures as nullification acts that are inconsistent with the Supremacy Clause of the United States Constitution and have no place or effect in the United States federal system. Sean Wilentz may be more forceful than most scholars in his denunciation of these measures--he refers to them as the product of "mendacity"--but, in general, he can be seen as expressing the dominant understanding. (7) As he argues, recent assertions of state sovereignty in regard to federal health care and gun laws are embodiments of the "discredited ideas" of "nullification and interposition" of the sort invoked by South Carolina in the 1830's and other southern states in the 1950's and with the effect of "subvert[ing] the constitutional pillars of American nationhood." (8) Meanwhile, some supporters have been equally willing to embrace the nullification label--not only regarding the recent health and gun measures, but also regarding challenges to federal driver's license and drug laws--for the purpose of defending them as modern invocations of the doctrine of nullification embodied by Thomas Jefferson's Kentucky Resolutions of 1798. Thus, Thomas E. Woods Jr., in his recent book, Nullification: How to Resist Federal Tyranny in the 21st Century, argues that "[t]wo dozen states nullified the REAL ID Act of 2005," and "[o]ne of the most successful examples of modern-day nullification involves the medicinal use of marijuana," wherein "states are openly resisting the federal government's policy." (9) He writes that "[n]ullification is being contemplated in many other areas of American life as well--and not just in health care," including passage of "Firearms Freedom Act[s]." (10) Woods concludes that "[t]his is the spirit in which the Jeffersonian remedy of state interposition or nullification is once again being pursued. …

"Than That One Innocent Suffer": Evaluating State Safeguards against Wrongful Convictions

Abstract: This article collects and describes the legislative and other binding policy directives in effect in each of the fifty states that function as safeguards in the following areas against the arrest, prosecution, and conviction of innocent persons: (1) eyewitness identification; (2) forensics; (3) interrogation and confessions; (4) informant testimony; and (5) forming an Innocence Commission. It then assesses the individual states' measures of commitment to Blackstone's expressed intolerance for allowing the innocent to suffer, evaluating their respective efforts against a checklist of prescribed reforms. I. INTRODUCTION In the mid-eighteenth century, William Blackstone famously stated that "it is better that ten guilty persons escape than that one innocent suffer." (1) Today, approximately two hundred and fifty years later, Blackstone's 10-to-1 ratio is often revisited, as represented by this special volume. (2) The United States and other nations are currently experiencing an Age of Innocence. The number of identified, innocent persons who were wrongfully convicted of crimes continues to increase. At the time of this writing, the Innocence Project has identified two hundred and seventy-two men and women who have been exonerated in this country since 1989 by post-conviction DNA evidence. (3) The Innocence Project only takes on cases in which DNA evidence is available for testing, estimated to represent just ten percent of criminal convictions. (4) In addition, more than ninety percent of the exonerations reported by the Innocence Project involve defendants who chose to stand trial. (5) In contrast, more than ninety percent of convictions nationally are the result of guilty pleas. (6) It is notoriously difficult to "right" a "wrong" guilty plea. (7) For these reasons and many others, scholars studying wrongful convictions posit that the number of identified innocents is the mere tip of the iceberg. (8) Although the precise size of the iceberg is contentiously debated, (9) there are compelling reasons to believe it is large enough to sink the Titanic. Blackstone's stated ratio, and the balancing of interests it envisions, remains as compelling today as when it was first articulated. It is easy to give lip service to the principle that innocent persons should not be punished for crimes they did not commit, even at the cost of guilty parties occasionally going free--whether the precise trade-off is one to ten, one to a hundred, or simply one too "many" (10)--in light of the mounting evidence regarding the incidence of wrongful convictions. There should be no less hesitation in converting the stated principle into policy, embodied by meaningful criminal justice reforms designed to protect the innocent against wrongful conviction. Yet, in practice, the states have largely shirked responsibility in enacting safeguards against wrongful convictions that have long been identified and are readily available. Ironically, the Blackstone ratio is, for the most part irrelevant, to the states' general lassitude in enacting meaningful reforms because, with scant exception, the proposed reforms would entail no trade-offs whatsoever; they would simultaneously guard against the innocent being convicted and help ensure that the guilty do not go free. Our purpose here is a simple one, but to our knowledge, one that heretofore has not been accomplished. We comprehensively describe and analyze current state policy initiatives in several areas relevant to the prevention of wrongful convictions. In doing so, we note how many and which states have enacted reform measures, when those polices were adopted, and describe the content of those reforms. In the appendix, we report the performance of the individual states on a checklist of enacted reforms. We focus on five areas of importance to wrongful convictions. Four areas concern the prevention of investigation and trial errors: eyewitness misidentifications; forensic science oversight; police interrogations and false confessions; and the use of criminal informants. …

Corporate Social Responsibility, Globalization, the Multinational Corporation, and Labor: An Unlikely Alliance

Abstract: I. INTRODUCTION Corporate social responsibility is often viewed as an industry or corporation-based concept with some base in law, but it is largely concerned with preserving the public face of the corporation. (1) However, in recent years, the focus of corporate social responsibility has shifted to new areas ranging from environmental protection to sustainable development and labor concerns. (2) At the same time, the world has witnessed the rise of globalization and the multinational corporation, (3) an entity that has been represented as everything from a source of economic growth in underdeveloped areas (4) to the perpetual nemesis in print and movie stories. (5) Those concerned by the typical mantra of globalization and the rise of the multinational corporation worry that taken together they represent the potential downfall of labor rights, especially given the constant threat of labor outsourcing to countries that are more amenable to business interests and, by insinuation, less amenable to fair labor practices. (6) In this view, corporate social responsibility is something that the multinational corporation must embrace in order to avoid public wrath and questions as to its business practices but is not something that provides a meaningful vehicle for development in any affected policy area. This is not, however, the only way to view the relationship corporate social responsibility and globalization as embodied by the multinational corporation. With that in mind, this article discusses the intersection between globalization, the more legally robust corporate social responsibility regimes that are being developed in relation to multinational corporate actions and actors, and the future of labor regulation. (7) While it is easy to gloss over this intersection through pessimism based on prior corporate bad acts, there is a need to look beyond this understanding of the intersection. Accordingly, this article argues that through robust corporate social responsibility practices and international organization regulations, globalization and the rise of the multinational corporation can serve as a source of improved labor rights within both developed and developing countries. (8) Part II of this article examines the link between globalization, the multinational corporation and labor issues, both in terms of exacerbating the problem of exploitative labor practices and in terms of bringing domestic and international attention to these practices. Part III examines corporate social responsibility both as a soft law construct and within the realm of international legal agreements and regimes. This Part demonstrates that corporate social responsibility is a flexible concept in law and that this flexibility can indeed create a positive link with the quickly evolving pace of globalization and the practices of multinational corporations. Part IV brings the lessons of the previous Parts together to discuss the meaning of the relationship between corporate social responsibility, globalization, multinational corporations, and labor rights. Cynically, of course, the meaning of this relationship could be seen as quite thin, since corporations increasingly need to present a "clean" image to their consumers and labor rights represent an easy way to do this. (9) This Part argues that moving beyond this inherent cynicism reveals far more important lessons. Essentially, multinational corporations need to make a profit and also need to be responsible actors in the communities in which they operate, including the communities in which their subsidiaries and affiliates operate. This often requires that the corporation use labor standards that are more generous or protective than those required by the domestic laws of the host state in which they operate. Although this requirement does not change the content of the domestic laws, it does provide for labor interests, ranging from unions and individual workers, with additional benefits and also with a more robust ability to petition for changes to the domestic laws based on the feasibility of implementing these higher standards. …

Estimating Empirical Blackstone Ratios in Two Settings: Murder Cases and Hiring

Abstract: There is a growing awareness in the legal literature of the need to estimate the prevalence of errors that exist within the criminal justice system A majority of the time, the focus is on the false positive, or wrongful conviction, rate Yet, a complete picture of the decision process requires estimates of both false positives and false negatives In this paper, I generate an estimate of the false negative rate for a representative sample of murders in Chicago I also estimate the cost ratio of false negatives to false positives that would be needed to justify using records of incarceration to identify people at risk in the Chicago metropolitan area Both estimates should shed meaningful light on the growing debate about what rules should be set to achieve more socially optimal decisions in both the criminal justice system and the labor market Future work should focus on replicating and extending these preliminary estimates I INTRODUCTION Some decisions involve a choice between two options In the case of the trial, the jury is trying to decide if a person is guilty or innocent, starting from the null hypothesis that the person is innocent In the case of employment, an employer is concerned about hiring a risky employee who will harm fellow employees or clients In this simplest kind of decision framework, there are two kinds of errors False positives are innocent or not risky people who are identified as guilty/risky (1) False negatives are guilty/risky people who were not identified as guilty/risky (2) The Blackstone ratio on which this special issue is based makes it clear that policymakers can specify the nature of the tradeoff between these error rates Specifically, in the context of conviction, Blackstone hypothesizes that it would be ideal to have a justice system that generates ten false negatives for every false positive (3) There has been considerable subsequent debate about the relative desirability of a conviction of an innocent man versus allowing a guilty man to go free, or whether such a tradeoff is even morally acceptable (4) A detailed review of the literature by Alexander Volokh found that the most commonly accepted standard in the US is that ten guilty men should go free before one innocent man should be found guilty (5) Volokh also found states that advocate for a one-to-one standard, as well as one state, Oklahoma, with a standard of one false positive for every one hundred false negatives (6) I am not aware of a systematic effort to describe the false negative rate in the US criminal justice system using archival data, but Shawn Bushway and Brian Forst provide a back-of-the-envelope estimate based on aggregate data of 1500 to 3000 false negatives to each false positive in the US criminal justice system (7) In this paper, I use existing data to determine a rudimentary estimate of the number of false negatives in murder investigations in Chicago in 1979 I find an empirical Blackstone ratio of sixty-one false negatives for every false positive, with a lower bound of thirty-five-to-one Employers and others who use criminal history records are more concerned about false negatives than false positives; that is, they want to avoid hiring risky people who will harm someone while working As a result, employers are plausibly willing to tolerate a certain number of false positives for every false negative In the extreme case, employers would be worried only about false negatives Most of the costs of false positives, like increased crime due to frustration or lack of legitimate income, are born by agents other than the employer However, society can make employers feel some of those costs (for example, through the threat of Title VII litigation) And employers can also have direct costs if they cannot find enough qualified employees Indeed, there is evidence that employers do willingly hire ex-offenders (8) I am aware of no literature that tries to quantify the acceptable tradeoff between false positives and false negatives by employers …

Regulating the Use and Sharing of Energy Consumption Data: Assessing California's SB 1476 Smart Meter Privacy Statute

Abstract: I. INTRODUCTION The rise of digital technologies has permanently altered how human beings interact, communicate, and function in the modern world. The marriage of enhanced data processing and internet-based communication enables average citizens and industry to easily access information and efficiently marshal control over complex systems in the physical and virtual world. While these advances have led to breakthroughs in efficiency, convenience, and an ability to tap new markets, the ubiquity of networked digital applications raises questions regarding the loss of individual autonomy, anonymity, and privacy to faceless, unaccountable corporate and government databases. In 2010 alone, both Google, Inc. and Facebook, arguably the world's leading providers of personalized web-based services, acknowledged inappropriate (and potentially illegal) collection of personal data as well as unauthorized dissemination of user information to third parties. (1) Increasingly, networked devices and services that purport to better our lives are being used as portals to collect data about our preferences, behavior, and lifestyles. (2) Over the next decade, technological changes in the electricity sector will force utilities, regulators, and ratepayers to balance the availability of powerful new capabilities and service offerings with legitimate concerns about consumer privacy. Through what is currently referred to as the "smart grid," electric utilities will be given access to detailed and granular electricity consumption information as a means to improve service reliability, reduce generation costs through reductions in "peak demand," and accommodate the introduction of renewable energy sources and plug-in electric vehicles into the nation's energy portfolio. (3) The U.S. government adopted the creation of a more efficient and reliable electric grid in the Energy Independence and Security Act ("EISA") of 2007 and has since directed nearly $4 billion in federal funding for smart grid technology deployments and demonstration projects. (4) The key to enabling this vision of a "smarter" grid lies in achieving three overarching capabilities: (1) activating communication and digital sensors with capabilities to automate the electricity distribution and transmission systems, (2) providing digitally enhanced metering systems for all customers, and (3) linking direct interfaces between metering systems and customers through "home area network" technologies. (5) From a privacy perspective, there are concerns that, in the course of helping grid operators establish real-time situational awareness over large swaths of the electric power system, these so-called "smart" technologies will also be collecting, aggregating, and reporting detailed energy consumption information from individual residences. (6) The potential for utilities and other vendors to collect and aggregate energy consumption data from individual homes and businesses raises significant questions about the access, use, and ownership of energy consumption information. (7) Although electric utilities have long accessed customer energy usage for billing purposes, the collection of energy consumption data has not previously raised privacy concerns because (1) electrical meters had to be physically accessed to obtain usage data directly from buildings, (2) traditional meters recorded energy usage over longer time periods and were not capable of collecting the type of granular, appliance specific data possible with smart meters, and (3) under the traditional model, utilities have not had the means nor the economic incentive to share consumer energy consumption data with third party vendors and others. (8) Recognizing that the collection and storage of data derived from smart meters and appliances raises potential for surveillance of customers and related "physical, financial, and reputational risks," (9) California recently became the first U.S. state to establish guidelines and protections for the collection and treatment of energy consumption data. …

Managing Miscarriages of Justice from Victimization to Reintegration

Abstract: I. INTRODUCTION Few aphorisms of criminal law are as exquisitely enigmatic as Blackstone's rule: "it is better that ten guilty persons escape than that one innocent suffer." (1) The number "ten" conveys an air of deliberation and precision, as well as justifiable concern about the need to honor the presumption of innocence principle, but the rule is vague on the essentials. It is silent about whether the rule should apply equally to all criminal offenders and offenses--serial rapists and shoplifters alike, for example--and mute about the policy implications of the rule for police, prosecutors, judges, and correctional officials. It is silent also about whether a number much larger than ten is acceptable. (2) This essay attempts to make these matters explicit, to identify each of the primary sources of miscarriages of justice and ask how they might be managed more effectively and to raise questions about the validity of the number ten along the way. The scholarly literature on miscarriages of justice has focused primarily on wrongful convictions, and with good reason: the presumption of innocence is a bedrock principle in our system of criminal justice. But miscarriages occur on both plates of the justice goddess's balance scale. They begin at the point of community failures to report serious crimes and police failures to respond to the ones that are reported. They include wrongful arrests and convictions, as well as wrongful dismissals and acquittals. Miscarriages of justice often continue beyond conviction, through sentencing, correctional treatment, and eventually, to failures to support the successful reintegration of offenders back to the community. In fact, many more than ten culpable offenders escape for every innocent person wrongfully convicted in the United States. Consider first the left-hand side of the 10-to-1 ratio: well over 10 million felony offenses that do not end in conviction are committed annually by adults. (3) As for the right-hand side, wrongful convictions have been estimated at between 0.5 and 1 percent of all felony convictions, (4) which amounts to between 5000 and 10,000 wrongful convictions per year. (5) Hence, we have a number in the neighborhood of 1500 to 3000 culpable adult offenders not convicted in reality for every innocent person convicted. (6) One can only speculate what Blackstone would have thought about a number more than two orders of magnitude larger than ten. Some of the sources of miscarriages of justice, on both sides, are outside the direct authority of criminal justice officials. The police can encourage members of the community to report crimes and provide the police with information needed to solve them, but citizens have no legal responsibility to do so. Many groups of individuals have good reasons not to contact the police: fugitives of justice, illegal immigrants, and people whose prior experiences with police have been negative. On the other side, innocent people occasionally find themselves on the wrong end of a perfect storm of circumstances, just due to bad fortune, that induce a jury to conclude erroneously that the defendant is guilty beyond a reasonable doubt. Perfect storms cannot be prohibited and are often unmanageable, but the prospects for finding ways to reduce miscarriages of justice caused by officials who are responsible for the pursuit of justice--the police, prosecutors, defense counsel, judges, and correctional officers--may be substantial. Rules of criminal procedure provide a crude system for managing errors of justice. The standard of evidentiary proof escalates as an individual advances from a "person of interest" to suspect, arrestee, and criminal defendant under prosecution. These rules encourage the police to protect the public by using a lower, less restrictive standard of evidentiary proof to investigate and arrest than is used in the courtroom. As cases move forward, the legal standard of evidence elevates from "reasonable suspicion" at the interrogation and investigation stage, to "probable cause" at the stage of arrest, and "beyond a reasonable doubt" at the stage of trial. …

A Local Approach to a National Problem: Local Ordinances as a Means of Curbing Puppy Mill Production and Pet Overpopulation

Abstract: I. INTRODUCTION "Puppy mill" has become a catchphrase synonymous with abuse and deplorable living conditions, conjuring to mind images of dogs crammed in wire mesh cages, matted with feces, and suffering from numerous untreated health problems. (1) Despite recent public attention to the issue and animal activists struggling to push for stricter regulation of commercial dog dealers, the federal agency in charge of the industry has failed to curb the rampant abuse through the inadequate regulations that are currently in force. (2) While the puppy mill industry churns out millions of puppies a year, millions of puppies and adult dogs are euthanized in shelters across the country after being let loose on the streets or abandoned to the system by their owners. (3) A growing number of local governments are trying to dampen the market for puppy mill dogs through the enactment of local ordinances that ban or severely limit the retail sale of cats and dogs. (4) By cutting off the ability of retail pet stores to sell their live products, these ordinances aim to curtail the demand for puppy mill dogs, thereby decreasing the supply and resulting in consumers turning to more humane places to get a new companion such as shelters, rescue groups, or small-scale breeders. (5) This paper will analyze the issues surrounding the potential for local ordinances to have an impact on puppy mills and pet overpopulation. Starting from the premise that local initiatives play a crucial role in changing public and governmental perception of the social and moral issues involved in the abusive puppy mill industry, this article argues that local ordinances that entirely prohibit the sale of dogs in pet stores--as compared to ordinances that regulate pricing of dogs sold by pet stores--should be utilized by more municipalities as a means of tightening market pressure on commercial dog dealers in the face of ineffective federal regulation. II. BACKGROUND INFORMATION Although "puppy mill" does not have a standard definition, the term generally refers to high volume breeding operations populated by poorly treated dogs that are bred at every opportunity, caged their entire life, and that receive minimal health care. (6) As in most businesses, profit maximization is the paramount concern of these enterprises. As of 2011, it is estimated that there are over seventy-eight million dogs owned in the United States, only twenty-one percent of which were adopted from animal shelters. (7) Over $2.13 billion were spent in the U.S. market in 2010 on live animal sales. (8) Despite the substantial amount of money involved in the sale of companion animals, approximately six to eight million dogs and cats enter shelters across the country each year; three to four million of those animals are euthanized in the shelter system. (9) Live animal sales only comprised 4.4 percent of the amount total spent in the pet industry in 2010. (10) The Humane Society of the United States estimates that in 2009 approximately one-third of the nine thousand pet stores across the country sold puppy mill born puppies and that between two and four million puppies produced by puppy mills are sold each year. (11) Meanwhile, it is estimated that half of the dogs and seven out of ten cats that enter the shelter system are euthanized due to a lack of homes. (12) While great strides have been made in animal advocacy and humane treatment in the last few decades, the problem of puppy mill exploitation and its connection to pet overpopulation has continued to vex local governments and animal advocacy groups. A new approach is necessary in the face of the failure of the current legal regime. III. FEDERAL REGULATION OF COMMERCIAL DEALERS The federal regulatory scheme that currently governs puppy mills is ineffective to ensure adequately humane treatment for dogs, making local action necessary. The federal government regulates commercial breeding operations under the Animal Welfare Act ("AWA"). …

A Patchwork of Policies: Justice, Due Process, and Public Defense across American States

Abstract: I. INTRODUCTION "In the end, a good lawyer is the best defense against wrongful convictions." (1) Adversarial systems are intended to discover the truth of an accusation through skilled combat over facts, evidence, and law. What adversarial procedures cannot guarantee, however, is that the truth will emerge from even the most balanced of competitions. In principle, the Constitution and procedural law are understood to err on the side of innocence--to establish the rules of the game in the adversary competition that favor defendants' fates over the state's interests in public safety and prosecution. Since the due process revolution of the 1950s and 1960s, this system bias was made more explicit through a series of rulings that clarified the procedural protections in the Bill of Rights. This movement turned a critical corner in 1963, when the Supreme Court asserted that "[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." (2) The right to legal counsel was widely regarded as the pivotal element in maintaining individuals' security against potentially coercive or careless authorities. While in 1949 Jerome Frank might have been accurate when he asserted that "facts are guesses," it seemed clear a few years later that the Court preferred that those "guesses" err on the side of defendants' claims of innocence. (3) The Supreme Court's establishment of a right to counsel was quickly followed by the development of model policies, best practices guides, and a growing consensus among legal professionals and advocates that the most accurate expression of the Court's intent would entail establishment of state-level (and state-funded) public defender offices, politically independent of both legislatures and local politicians. (4) However, having established the general right to counsel, the Court had rather little to say about how to deliver it, leaving states and local governments to devise systems that met budgetary constraints, and that were politically palatable in their own legislative and political environments. (5) Further, in the intervening decades, while the rules of criminal adjudication have become more complex, public opinion about crime and punishment has grown more cynical and alarmed, and the economic and social disparities often associated with involvement in the criminal justice system have become wider. (6) As a result, public defense remains a low-visibility, decentralized, and highly variable element of state court operations. While in all states systems have been put in place to ensure at least nominal representation in criminal prosecutions, the structure, funding, quality, and breadth of the right to counsel varies dramatically across states and localities. If counsel is critical to a principled and effective defense, then we must hypothesize that substantial variability in the characteristics of public defense systems produces substantial variation in the risk and the reality of erroneous convictions. We add that most studies suggest that at least eighty percent of criminal defendants are, by conventionally used criteria, determined to be indigent at the point of arrest, (7) so the systems established for the representation of the poor are, in effect, the systems that define and delimit due process for the nation at large. Hence, we argue that the structure of public defense policy has potentially significant implications for the quality of justice. We recognize the inherent problem in measuring the possibility of injustice: after all, if a state system routinely discourages active defense, is based on financial incentives, and produces outcomes that are difficult to appeal, we cannot document and quantify those miscarriages of justice. We can estimate their likely existence, however, just as we can estimate lives lost to higher speed limits, educations foregone due to more restrictive student loan policies, or homes foreclosed due to more exploitative lending policies. …

In Defense of Deterrence

Abstract: The civil justice system deters misconduct. It generates far-reaching and positive market effects beyond victim compensation and recovery. Civil judgments, settlements, the potential for litigation--the tort system itself--has a beneficial effect on the behavior of those who are the subject of legal action as well as others in the same or similar lines of commerce. Over the last twenty years, legal scholars have debated whether the civil justice system generally, and tort recovery in particular, generates a deterrent effect. Those who have argued for tort reform (limiting the expanse and reach of accountability in the civil justice system) contend that the tort system has failed to live up to its promise of providing meaningful deterrence. Those who oppose tort reform and defend the civil justice system argue that tort cases have a powerful effect not only on the parties, but also on others involved in similar activity. This article takes the following position: those supporting tort reform cannot wish away deterrence. To claim that punishment has no effect on other market participants is to deny our collective experience. Deterrence is a real and present virtue of the tort system. The actual or potential imposition of civil tort liability changes the behavior of others. I. INTRODUCTION For families suffering the wrongful death of a loved one and victims of defective products or negligent acts--suffering brain injury, loss of a limb, the ability to reason, or the capacity to love and be loved--litigation is about more than money. (1) It is about more than vengeance or retribution. It is about the promise of the civil justice system. Civil justice for plaintiffs derives from the fairness of the process, the right to have one's story told, meaningful remedy, and one additional factor: plaintiffs ask the legal system to take steps to prevent repetition of their tragedy. (2) Prevention of future harm is a powerful public expectation and basic motivation for those injured by wrongful acts or defective products. (3) Families and victims do not want their tragedy to be a loss in vain, a hope expressed by some courts as well. (4) Individuals and entities brought to justice establish models for future actions producing positive incentives that lessen the probability that others will suffer the same harm they experienced. (5) When school athletic programs fail to protect a student (6) or an infant's breathing monitor fails, (7) i.e., when avoidable disaster strikes, we look to the legal system for recognition of harm--and for the hope that future losses can be avoided. In a contractarian model of the legal system, a party who harmed another would simply pay for it. (8) The tort system is not primarily contractarian. (9) It is about fault and responsibility, obligation and foresight, carried out with the hope that civil justice produces a result that acknowledges plaintiffs losses and limits the possibility of a repetition of plaintiffs tragedy. It is about deterrence. The nature of a legal proceeding or judgment affects the deterrent impact of that action. The civil justice system reflects a remarkably complex array of procedures, judgments, and other legal actions. A punitive damage award is likely to have a more immediate deterrent effect than a simple negligence case with modest compensatory damages. (10) Cases that result in an articulation of clear norms or principles will have more of a deterrent effect than those that do not. (11) Each case in a common law system creates the potential for normative articulation and deterrent impact. The force of a clear judicial determination of liability is undeniable. Similarly situated entities assess such findings and either reconfigure their action or behavior (a deterrent response) or choose not to do so and, thereby, risk downstream liability. (12) Frankly, it is hard to conceive of a healthy economic model where rational actors ignore clear warning signs and thus render themselves vulnerable to sanctions or punishment. …

Ensuring Public Trust at the Municipal Level: Inspectors General Enter the Mix

Abstract: I. INTRODUCTION Inspectors General represent one more strategy in a significant national effort to gain greater oversight and accountability over governmental agencies and operations. Although federal, state, and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. Ethics enforcement agencies may, following investigations and hearings, impose civil penalties on those found to have violated ethics laws; and ethics agencies may refer appropriate matters to attorneys general or district attorney offices for further inquiries into criminal wrongdoing. The public trust, however, also encompasses notions of protecting the public fisc, meaning avoiding fraud, waste, and abuse of precious government dollars. (1) The ability to audit governmental operations typically rests with the Government Accountability Office at the federal level (2) and various state level comptroller offices that may have dual jurisdiction to audit agencies and programs at both the state and local levels. However, the use of an auditor alone may be insufficient to fully guard the public's interest, as this authority is typically limited to financial and performance audits. In contrast, an office of inspector general combines the duty of an auditor to conduct financial and performance audits with the authority to further investigate fraud, waste, and misuse of government assets. (3) The reported lack of ethical conduct at the municipal level in jurisdictions across the country is appalling. (4) Although, as one prominent municipal ethicist points out, most municipal officials are basically good and honest people trying to do the right thing; (5) the reality is that hardly a day goes by without media attention spotlighting allegations of abuse of the public trust by elected and appointed local government officials. Therefore, it is not surprising that the public has sought and demanded additional methods of monitoring the conduct of public officials. (6) Part II begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in the United States at the federal and state levels. The article continues in Part III with a focused examination of the reasons behind the creation of inspectors general at the municipal level and the various models or forms that have emerged in the establishment, jurisdiction, and operation of these offices, as well as budgetary issues. Part IV examines the interplay between inspectors general, ethics commissions, and law enforcement agencies. Part V considers the cost-benefit analysis of the municipal inspector general, exploring whether the expense can be justified by the savings and other associated benefits. Part VI concludes with a recommendation that, in the current era of scarce fiscal resources, especially at the local level, municipalities should consider whether the establishment of an inspector general office can assist in not only furthering a commitment to ethical government, but in identifying cost-savings for the locality. II. HISTORICAL PERSPECTIVE The inspector general concept emerged during the reign of King Louis XIV in France. (7) The inspector general position was established within the military, being charged with inspecting the army, examining records and books, and removing those who were no longer fit to serve. (8) The French inspectors general would evaluate the army and report directly to the King once a month. (9) This inspector general function spread throughout European armies, and eventually to the United States. (10) The historical underpinnings of the American inspector general were fraught with issues of ineffectiveness and quick turnover. (11) These first inspectors general had limited roles, (12) and were soon replaced in December 1777 by two inspectors general with jurisdiction over the Army as a whole, having the responsibility to review and instruct the troops, and to review and report on numerous topics including inventory, rations, and money spent. …

Blackstone and the Balance of Eyewitness Identification Evidence

Abstract: I. INTRODUCTION Blackstone's Commentaries on the Laws of England is comprised of four books, written in two volumes, running well over 1500 pages in length. Within this enormous work there may be no more well-known or more memorable line than that which has come to be known as the Blackstone Ratio: "the law holds that it is better that ten guilty persons escape than that one innocent suffer." (1) The Blackstone Ratio clearly acknowledges that there are two kinds of errors that can be made within the criminal justice system, and that one, the false conviction, is far worse than the other, the false acquittal. Two other points are also implicit within the Blackstone Ratio, specifically that there is a trade-off relationship between false convictions and false acquittals, and the criminal justice system has some control over that trade-off in terms of the kinds of errors, false acquittals or false convictions, it will allow. The implication of the Blackstone Ratio is that the criminal justice system could reduce the number of false convictions, but in the process would lose some correct convictions. Alternatively, the criminal justice system could increase the number of correct convictions, but would likely convict more innocent people as well. Without these two assumptions, regarding the trade-off between false convictions and false acquittals, and regarding the criminal justice system's role in determining that trade-off, the Blackstone Ratio would be meaningless. There would be little point in considering the proper relationship between false convictions and false acquittals to the extent that it was possible to reduce both errors simultaneously, or if the criminal justice system was powerless to control the relationship between the two. Of course, much has happened since Blackstone wrote those famous words. Technological advances in forensic science in just the last thirty years do make it possible to reduce both errors simultaneously, DNA evidence being the obvious example. For other forms of evidence, however, the trade-off implied by the Blackstone Ratio may operate today much as it did almost 250 years ago. The focus here is on eyewitness identification evidence for three reasons. First, the connection between eyewitness identification and wrongful conviction is well-established. In approximately 75% of the 261 cases in which innocent people were convicted and later exonerated through DNA evidence, the original conviction was obtained in whole or in part through mistaken eyewitness identification. (2) These and other archival analyses of false convictions have led to a consensus among legal scholars that mistaken eyewitness identification is one of the primary causes of wrongful convictions in the United States. (3) This dubious distinction begs the question, why does eyewitness identification contribute to so many wrongful convictions? An answer to this question brings us to the second reason for focusing on eyewitness evidence: it is extremely malleable, both in terms of the underlying information in memory and in the decision processes that operate on that information. This malleability not only affects the outcome of the identification procedure, in terms of whether a witness fails to identify the guilty or falsely identifies the innocent, but also influences the way eyewitness evidence flows through the criminal justice process. Third, this malleability of information and decision processes connects eyewitness identification to the two components of the Blackstone Ratio--the trade-off between false convictions and false acquittals, and the criminal justice system's control over that trade-off. The relationship between mistaken identification and wrongful conviction is often described retrospectively by starting with the wrongful conviction and tracing the path backwards to the cause of that wrongful conviction. The statistic linking wrongful convictions to mistaken identifications is such a retrospective analysis. …

Indian Tribal Sovereignty - Current Issues

Abstract: INTRODUCTION The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one, and of a complex character. (1) There is nothing in the whole compass of our laws so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this [United States] government and those of the states. (2) The legal relationship of Indian (3) tribes to non-Indian governments in what is now the United States, and the tribes' status as sovereign or quasi-sovereign or semi-sovereign governments, has been a perplexing problem for centuries and remains so. This article seeks to address current concepts of tribal sovereignty as articulated by the Supreme Court of the United States and by tribal advocates who vehemently disagree with the high court's rulings. (4) We seek to examine how these varying views on tribal sovereignty give rise to jurisdictional conflicts in the real world, especially in the State of New York where significant disputes have been litigated in recent times. Our goal is to provide the reader with an understanding of the nature and extent of the jurisdictional conflicts that are in the courts now and where conflicts may arise in the future, not just in New York but wherever tribes seek to exercise claimed sovereign rights. (5) I. A PRIMER ON INDIAN TRIBAL SOVEREIGNTY The history of the relation of Indian tribes to the early settlers in North America, English colonies, the confederal government, the states under the Articles of Confederation, and ultimately the United States of America and the states of the Union under the Constitution, is long, nuanced, and multi-faceted. The interactions occurred on political, legal, and cultural levels. Relations developed between and among Indian tribes and the many non-Indian communities and individuals they encountered. The non-Indians at any given time might represent the European colonial government or the domestic national government. White traders and missionaries frequently initiated the contacts. These interactions often led not only to economic, political, and cultural engagement, but also to open conflict, including raids, massacres, and reprisals. In the Declaration of Independence, the founding fathers referred to Indians as the "merciless Indian savage." (6) Upon achieving independence from Britain, the founders appreciated the serious threat to their fledging government presented by independent tribes who controlled strategic locations between British-occupied areas and the newly-formed United States. (7) Even without British provocateurs fomenting unrest, the threat of Indian wars remained a recurring feature of American political life well into the 19th century. (8) Indians were vilified in the press and popular culture; references to them as "savages" persisted for generations. The judges who were called upon to address the "Indian problem" were not immune to these cultural forces; contemporaneous judicial opinions reflect the prevailing racist attitudes and language. (9) A detailed treatment of this history is beyond the scope of this article. Rather, we offer a "primer" focused on Indian tribal sovereignty law, documenting its development over the past two centuries, to enable readers to put current jurisdictional conflicts in context. A. Historical Development 1. Pre-Constitution The first Western civilization explorers and settlers in North America found indigenous people living here. (10) These indigenous people and their families, communities, or tribes were sovereign in the sense that they were not subject to external control or the exercise of power by European or other nations from which these explorers or settlers came. There were, however, numerous Indian groups in North America; and the relationships between and among these indigenous groups were marked variously by friendship, coexistence, competition, conflict, and conquest. …

The increasingly blurred line between "mad" and "bad": treating personality disorders in the prison setting.

Abstract: In New York State, Mental Hygiene Law defines mental illness as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." (1) It has long been acknowledged that individuals suffering from active symptoms of mental illness might not be fully responsible for their actions. This concept manifests in criminal law, as with the insanity defense, and also in civil arenas. Examples include the competence to make certain personal choices, such as making wills, choosing among treatment options, and being civilly committed. The concept of diminished personal responsibility as a result of mental illness has historically been articulated in standards regarding the insanity defense, ranging from the M'Naughten Test to the American Law Institute Test. (2) Regardless of the exact standard, the underlying reasoning is that mental illness, by impairing a person's ability to think rationally or control behavior, arguably impacts the degree to which he is truly able to make choices independently and, by extension, is responsible for his behavior. The role of mental illness in individual behavior and personal responsibility, however, is far from straightforward. There are instances where mental illness and its relationship to violent or criminal behavior are clear; take for example an individual who commits an act in response to delusional beliefs. Among mental health professionals, it is well accepted that psychotic illnesses and major mood disorders, diagnoses traditionally included within the category of serious mental illnesses ("SMI"), have the potential to lead to behaviors for which an individual may not be fully responsible. These illnesses have biological factors that are documented throughout the scientific literature, and, for the most part, have established effective, if imperfect, treatment regimens comprised of medications and other therapies. (3) It is also known that symptoms of mental illness vary in severity and may wax and wane over the natural course of the illness. Therefore, the mere presence of a diagnosis does not necessarily equate to lack of responsibility for behavior. Mental illness may account in part or in full for behavior, or may only be coincidental to that behavior. While it is important that individuals who are unable to think rationally or control behavior as a result of mental illness are not criminally sanctioned, it is also necessary to recognize that many individuals who have mental illness can in fact function competently and rationally when not symptomatic. There are also those who function well even while experiencing mental health symptoms. No diagnosis is in and of itself synonymous with functional incapacitation, symptoms fluctuate over the course of illness, and the degree of impact varies greatly from one person to the next. In that sense, failure to recognize that individuals with mental illness can be responsible for their own decisions contributes to the stigma of mental illness. Treatment advancements beginning in the 1970s, including improvements in psychopharmacology, increasingly supported the notion that symptoms of SMI are often transitory and controllable. Legal requirements, such as the least restrictive level of care standard in commitment criteria as articulated in the landmark case Lake v. Cameron, (4) required changes in commitment practices with advances in symptom management. (5) Subsequent court decisions established protections for civil commitment hearings, as exemplified by Lessard v. Schmidt, (6) which established procedural requirements, and by Addington v. Texas, (7) which established the standard of proof necessary for involuntary civil commitment. While court decisions have increasingly protected seriously mentally ill individuals from involuntary commitment or retention in a psychiatric facility without significant due process, a series of legislative actions, bolstered by court decisions, simultaneously increased the involvement of the mental health system in the treatment and control of criminally involved individuals, particularly those diagnosed with serious personality disorders. …

Criticizing the Economic Analysis of Franchise Encroachment Law

Abstract: One of the most vital legal debates in the field of franchise law has focused on one central question: whether encroachment--that is, the phenomenon in which the franchisor establishes a new franchise unit in unreasonable proximity to its existing franchisee--should be restricted by law. Given the centrality of the law and economics school of thought, it is not surprising that legal economists play a dominant role in the legal debate over encroachment legislation. Law and economics' conventional analysis contends that franchise encroachment legislation, restricting the franchisor from establishing a new unit in unreasonable proximity to its existing franchisee, is inefficient. Opposition to such legislation is based upon the belief that franchise encroachment increases consumer welfare, mainly by increasing price and service competition among neighboring franchisees. Focusing on consumer welfare, this article argues that traditional law and economics analysis is incomplete; the conventional analysis ignores the broader and long-term negative implications that encroachment practices may have on consumer welfare. While, as legal economists suggest, encroachment may enhance consumer welfare in the short-term by increasing price and service competition, encroachment will bear a high cost for consumers in the long run. The argument presented in this article is the following: encroachment practices are often used by franchisors in order to cause their respective franchisees' businesses to fail, thereby allowing franchisors to evade a contractual or statutory obligation to pay damages to a franchisee upon direct contract termination. Such manipulative practices therefore increase the rate of franchisee business failure in the franchise industry as a whole. The increase in the rate of franchisee business failure, as caused by encroachment practices, is likely to deter individuals considering becoming franchisees from joining the franchise industry. Deterring such individuals ultimately will reduce consumer welfare by decreasing the inherent pro-consumer efficiencies achieved by franchisees, including lower prices and product standardization. Since an encroaching franchisor typically does not bear the entirety of the long-term social costs of her destructive strategy, yet directly benefits from such a strategy, this article ultimately calls on federal and state policy makers who are currently considering the adoption of encroachment laws to adopt such laws. Under these laws, adopted so far by a minority of states, should a franchisor encroach on a franchisee's market area, the franchisee has a cause of action for monetary damages against the franchisor. A damages regime forces the franchisor to internalize the social harm that her destructive encroachment strategy may cause in the long run. ARTICLE CONTENTS I. INTRODUCTION II. FRANCHISE ENCROACHMENT--LEGAL FRAMEWORK A. State Legislation B. Federal Legislation III. THE LAW AND ECONOMICS OF ENCROACHMENT: CONSUMER PERSPECTIVE IV. ENCROACHMENT AND CONSUMER WELFARE--A SECOND LOOK A. Encroachment Increases Franchisee Failure Rates 1. Encroachment Reduces the Revenues of Existing Franchisees 2. Reduced Revenues Lead to Franchisee Failure B. Increased Franchisee Risk of Failure is Likely to Deter Individuals from Becoming Franchisees C. Deterring Individuals from Becoming Franchisees Decreases Consumer Welfare V. CONCLUSION I. INTRODUCTION Franchise encroachment--the phenomenon in which the franchisor establishes a new franchise unit in unreasonable proximity to its existing franchisee--is widespread. (1) To illustrate, a nationwide survey of 179 sandwich shop franchisees indicated that twenty-seven percent of the franchisees had suffered from encroachment by their franchisor. (2) Likewise, most large restaurant franchisors had been dragged into a court battle with frustrated franchisees over encroachment. …

The Constitutional Parameters of New York State's Domestic Workers Bill of Rights: Balancing the Rights of Workers and Employers

Abstract: I. INTRODUCTION New York State's new Domestic Workers Bill of Rights (1) is a remarkable and welcome departure from the ordinary governmental lack of enthusiasm for protecting workers who work in other people's homes. For the first time in any U.S. jurisdiction, domestic workers are given protections akin to those commonly found in non-unionized workplaces. (2) The statute was enacted in July 2010 after several years of failed attempts at legislative reform. (3) The law amends New York State's Labor Law, Executive Law, and Workers' Compensation Law. (4) In enacting the new law, the New York State Assembly found "that because domestic workers care for the most important elements of their employers' lives, their families and homes, it is in the interest of employees, employers, and the people of the state of New York to ensure that the rights of domestic workers are respected, protected, and enforced." (5) Prior to the enactment of New York's law, domestic workers (6) were afforded virtually no protections that were commonly enjoyed by other workers, either through law or custom. (7) In New York, they were not, and in most other jurisdictions still are not, entitled to vacation leave, medical leave, notice of termination, or the right to organize and bargain collectively. (8) They were not covered by antidiscrimination laws, (9) nor were they protected against wrongful discharge. (10) The matrix of laws that do cover domestic workers are found in different configurations throughout the country, contain complicated exceptions, and are difficult to enforce. (11) For example, none of the most important federal statutes regulating the workplace provide full coverage for domestic workers. (12) The Fair Labor Standards Act ("FLSA") that regulates minimum wage and overtime pay (13) does not cover live-in caregivers. (14) More disturbing are the explicit and implicit exclusions of domestic workers found in the Occupational Safety and Health Act ("OSHA"), (15) the act that protects workers against occupational dangers; the National Labor Relations Act ("NLRA"), (16) the act that guarantees the right to organize and collectively bargain; and Title VII of the Civil Rights Act of 1964 (17) that protects workers against various forms of discrimination. New York represents the first successful campaign by domestic worker advocates to win protection through state legislation. (18) Not surprisingly, the new law was met with overwhelming approval of domestic worker groups and labor activists. Yet, there was virtually no organized opposition from employers. (19) However, employer concerns may arise when it comes time to enforce the law. (20) Employers might object to governmental intrusion into the family home, notwithstanding general approval of some degree of regulation of the "typical" workplace. Questions of privacy and freedom of expression are at least implicated by the new law. One might ask how the law will be enforced without some intrusion in the operation of someone's private household. These questions arise in a setting unlike any other employment setting--within the employer's private home. I argue that despite this unique setting, the new law, though touching upon certain constitutional rights of employers, does not run afoul of the Constitution any more than does regulation aimed at more traditional workplaces. Constitutional questions that arise in the employment setting routinely involve an assessment of the rights and obligations of the parties and of the public. Although balancing the interests between an employer and employee is common in the constitutional jurisprudence of the workplace, (21) some might argue that because employment takes place within someone's home, the constitutional analysis ought to reflect, in some way, the exceptional nature and setting of the domestic employment relationship. That is, the government should exercise more caution in intervening in a dispute between employer and employee when that dispute takes place in someone's private home. …

Adopting Ohio Senate Bill 5: The Role of the Public University Presidents

Abstract: The legislature is expected to address pension reform early. Language is being developed and not yet available; major changes ... are being discussed [by Ohio's political leadership--changes that will require employees pay a portion of the employers' contributions]. This will likely be a major issue for faculty and staff. There may be opportunities for universities as employers to save money, but it will come out of the wallets of employees ... The Ohio and regional chambers of commerce has issued a report that recognizes the advantages of defined benefit [pension] plans and a retire/rehire policy [that allows senior university administrators to simultaneously receive a full pension and their full salary] ... (1) I. INTRODUCTION In March 2011 the Ohio General Assembly passed Senate Bill Five ("S.B. 5"), a measure that would have banned collective bargaining by public university faculty members and severely limited bargaining rights for other public employees. (2) Ohio voters decisively rejected S.B. 5 in a referendum election eight months later, preventing it from taking effect. (3) In response to public records requests I have received thousands of pages of documents that describe the role of public university presidents in connection with S.B. 5. Based on this newly available information, this article examines the actions, and analyzes the arguments, of senior university officials. Together with similar collective bargaining legislation in Wisconsin, S.B. 5 triggered a national debate about labor policy and the role of the middle class in American life. (4) Besides those general concerns, however, the events hold special significance for our understanding of universities. S.B. 5 singled out university faculty for the most stringent treatment of any group and it did so via a provision--known as the "Yeshiva amendment"--that Ohio's public university presidents drafted and promoted in secret. (5) The original version of S.B. 5 would have eliminated collective bargaining for public employees in Ohio, including employees of the state's public universities. (6) In late February 2011 legislative leaders substituted an amended bill, one that reinstated bargaining but limited its permissible subjects and effectively allowed public employing bodies to impose their own last offers at the end of process with no further recourse by employees. (7) The Yeshiva amendment further amended the bill by reclassifying university faculty as managers who were ineligible for bargaining, provided only that the faculty participated in curricular, faculty hiring, or similar decisions. (8) Since every university faculty member does those things, the amendment effectively banned bargaining by faculty. (9) The amendment took its name from NLRB v. Yeshiva University, a United States Supreme Court decision holding that private university professors qualified as "[s]upervisors and managerial employees" under the National Labor Relations Act and were therefore excluded by the Act from collective bargaining. (10) Ohio's university presidents effectively replaced traditional conceptions of the university, the faculty, and the administration with a standard labor law model, one restricted to the categories management and employees--both of which operate under presidential direction. (11) The presidents did so, I argue, in an effort to transform higher education institutions into what Benjamin Ginsberg calls "the all-administrative university." (12) Consistent with that view, the presidents identified their institutions with themselves, equating presidential authority with institutional freedom and creativity. (13) This article has four parts. First, it chronicles the presidents' actions, which they took pains to conceal from public view. The presidents acted through the agency of the Inter-University Council ("IUC") of Ohio, a statewide association of public university administrations that represented the presidents in extended discussions with the Governor's office and legislators. …

Executive Orders and Gubernatorial Authority to Reorganize State Government

Abstract: This essay considers the extent and limits of the power of a newly elected governor of New York State to reduce the size of government by executive action To do this, we explore the nature and use of executive orders for reorganization and in emergencies, both in the states generally, and in New York We find that the New York governorship, generally regarded as one of the strongest in formal powers, is in fact less empowered in this area than the office in many other states One leading aspirant for the governorship, Andrew Cuomo, has indicated an intention to "eliminate 20 percent of the state's more than 1,000 agencies, authorities, commissions and the like," and to create a high level reorganization commission toward this end (1) After examining the experience with and legal basis for gubernatorial reorganization authority in New York and other states, we conclude that there may be some limited opportunity for a governor to act on his own authority in this area In general, however, we concur that, at a minimum, statutory authority is required to achieve thorough restructuring of state government Adopting a statute on the model currently in force in New Jersey would maximally empower the governor to achieve substantial state government reorganization in New York I EXECUTIVE ACTION TO ALTER THE STRUCTURE OF NEW YORK STATE GOVERNMENT REQUIRES A STATUTORY OR CONSTITUTIONAL BASIS Unlike the national government, which under the US Constitution is one of limited, delegated powers, "state governments[,] acting through their state legislatures[,] are presumed to have broad, residual, almost plenary governmental power" except insofar as these are limited by state constitutions (2) But these powers are vested in legislatures and do not extend to state executives, who must find a constitutional or statutory basis for their actions (3) It is therefore universally the case in American separation of powers systems that the formal power to adopt public policy is with the legislature In New York, the governor's constitutional role in policymaking is defined with reference to the legislature The state constitution provides that "the governor shall communicate by message to the legislature at every session the condition of the state, and recommend such matters to it as he or she shall judge expedient" (4) He or she may call both houses into a special session for which he or she defines the agenda And after legislative action, the governor is required to "expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed" (5) There is an executive veto in New York, but it may be overridden by a vote of two-thirds of the members elected to each legislative house (6) The veto itself was originally conceived as a means of correcting errors, and only over time evolved to a tool with which the governor could contest legislative policy choices (7) It is the intent of the New York State constitution that the governor have no "pocket veto," that is, that he or she not be able to block the legislature's will by inaction, so long as it remains in session The governor's power in budgeting, carved from legislative prerogative through twentieth century constitutional change, in accordance with the goals of the progressive reform movement, (8) was further extended by the state's high court in recent years (9) In contrast, the power to issue executive orders, not explicitly given in the state constitution, has been interpreted in the courts in a manner far less generous to the executive The power is based on the provision that "[t]he executive power shall be vested in the governor," which was added to the New York State constitution in 1821 in apparent emulation of the vesting clause in the United States Constitution (10) There has been considerable controversy regarding the degree to which the United States President is independently empowered by the vesting clause …

State Constitutions as Interactive Expressions of Fundamental Values

Abstract: Given the awful event in their history, (1) it must be comforting for Oklahomans to imagine that terrorism comes at them from afar. False, but comforting. So perhaps we should not be surprised to learn that when Oklahoma voters recently ratified a state constitutional amendment (2) barring their courts from "look[ing] to the legal precepts of other nations or cultures" or "consider[ing] international law or Sharia law," they did so by an overwhelming majority. (3) In fact, some journalists attribute the amendment in part to a partisan hope that its inclusion on the ballot would drive up Republican voters' turnout at the polls--presumably because ordinary Oklahomans were even more enthused by this bigoted proposal than they were by the Republican politicians. (4) While the amendment itself is obviously a poisonous stew of stupidity, fear, and hate, it cannot be blamed on the irrationalities of state constitutional popular initiatives. (5) The question was placed on the ballot by Oklahoma legislators, who voted for it by 82-10 in the House and 41-2 in the Senate. (6) With such strong support for the proposal in the legislature, a statute to the same effect would likely have succeeded easily. So what did Oklahomans hope to achieve by placing the text in the state constitution? In this essay, I argue that the Oklahoma amendment illustrates the use of state constitutions to express and contest a political community's identity and defining values. In Part I, I examine those values and their cultural context more closely. (7) Among the values implicit in the amendment's text is a profound ambivalence toward American courts and the federal Constitution; ironically, the extremism of the amendment all but guaranteed that courts would play a central role as a forum for the debate on American identity the amendment seeks to provoke. The amendment's status as a state constitutional text is crucial to both this court-denigrating purpose and its court-elevating effect. In Part II, I show that the political community at stake is national, as contemporary state constitutional scholarship has argued. (8) The state constitution works here as a tool for the majority of Oklahomans to enact--that is, to perform--their vision of what it means to be American, and simultaneously to challenge their fellow citizens to adopt the same values. Finally, I conclude that Oklahoma's amendment reflects the power and potential of state constitutions today. (9) PART I The supporters of Oklahoma's amendment seek to reflect and install a particular conception of American identity; they seek to define who is us and who is them, while asserting that that definition has already been accomplished. (10) The most telling illustration of this comes from the two core sentences of the text: "The courts [of Oklahoma] shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law." (11) These sentences require judges to understand what "other ... cultures" (12) are (non-white? non-Christian?), and if they do not, it informs them that Sharia law is an example of legal precepts from an "other" culture. (13) In this way, Muslim Americans who observe principles of Sharia in Oklahoma are defined as fundamentally outside the political community that authors the state constitution. By coincidence, the lead plaintiff opposing enforcement of the amendment, Muneer Awad, is a native-born American citizen and a graduate of the University of Georgia Law School. (14) For him, Sharia does not come from an "other" culture--it is his own, and therefore as American as anything else about him. (15) Not only the text, but also the authors' subjective intent, marginalizes Muslim Americans. One of the amendment's authors, for example, has explained that the amendment demonstrates "an awakening of people concerned about Christian values in our nation, and they are starting to express themselves. …

Civil Forfeiture as a Remedy for Corruption in Public and Private Contracting in New York

Abstract: I. A LONG HISTORY OF PUBLIC CORRUPTION SCANDALS IN NEW YORK As such things go in New York City, the scandal centering on James L. Marcus, the Commissioner of Department of Water Supply, Gas, and Electricity, which came to light in December 1967 fell into the middle range. It was certainly not the first public corruption scandal. That dubious distinction belongs to Willem Verhulst, the first Provisional Director of the New Amsterdam colony who was removed from office in the spring of 1626 on an accusation that he and his wife had misappropriated funds and cheated the Indians when New Amsterdam was not quite a year old. (1) The Marcus scandal also certainly lacked the bizarreness that was attributed to Edward Hyde, Lord Cornbury, the Colonial Governor of New York from 1702 to 1708, who was reputed to have not only pocketed 1,500 [pounds sterling] allocated for fortifying the Narrows but to have strolled the walls of the Battery wearing a dress. (2) Nor did the Marcus scandal involve the largest amount of graft. That title was presumably and hopefully, retired by the Tweed Ring, which is reputed to have stolen as much as $200,000,000 (3) in 1860's and 1870's dollars. (4) The Marcus scandal did not bring down a mayor in the way that massive Tammany Hall corruption forced Mayor Jimmy Walker to take a permanent European vacation in September 1932 (5) or in the manner that the conviction of James J. Moran (6) lead to the resignation of Mayor William O'Dwyer on September 2, 1950. (7) Indeed, Governor Lindsay's biographer states that "[i]n the long run, the Marcus scandal did not tarnish the Lindsay administration. Lindsay himself was above reproach on the issue of honesty and integrity." (8) II. THE MARCUS SCANDAL What the Marcus scandal did do that none of its predecessors had done was to create a legal doctrine that has been consistently extended by the New York courts as a deterrent to corruption and illegality in public contracting. This is not to say that the Marcus scandal was without interest aside from its legal progeny. It lead to the jailing of a City Commissioner (Marcus), as well as a member of the Luchese Crime Family (Antonio "Tony Ducks" Corallo), Henry Fried, the corrupt contractor who owned S.T. Grand, Inc., several other corrupt contractors, a corrupt lawyer, the head of a union, and, most significantly, Carmine G. DeSapio, the former head of the legendary Tammany Hall. (9) Yet another scheme using Marcus's office lead to the conviction of the former Law Chairman of the New York County Republican party. (10) James L. Marcus was a self-made man in the sense that he made it all up. Marcus's only real "qualifications" for high public office were that he had married the daughter of the former Governor of Connecticut and had developed a friendship with John Lindsay, a rising politician. (11) No one bothered to check Marcus's claims as to his background before he was appointed as the Commissioner of the Department of Water Supply, Gas, and Electricity and later, after a municipal reorganization, the Commissioner of the new Environmental Protection Administration. (12) However, Marcus had not only lost money on "shady business deals," but he also owed money to Corallo, a Luchese crime family loanshark. (13) A solution to Marcus's problems was arranged and Marcus issued an $850,000 emergency contract to clean the Jerome Park Reservoir to S.T. Grand, a company whose principal was Henry Fried. (14) Fried paid $40,000 to Corallo, who in turn applied it towards Marcus's debt. (15) The misuse of Marcus's authority worked so well that the principal perpetrators decided to add-in Carmine DeSapio, the former chief of Tammany Hall, and to extort money from the Consolidated Edison Company. (16) On December 12, 1967, Marcus, who was under investigation, suddenly resigned and a week later Marcus, Corallo, Fried, and others were arrested. (17) The Marcus scandal has had a continuing effect on the law in New York because Fried and S. …

Bridging the Gulf: Using Mediated, Consensus-Based Regulation to Reconcile Competing Public Policy Agendas in Disaster Mitigation

Abstract: I. INTRODUCTION The SS Deepwater Horizon (1) exploded on April 20, 2010, in its aftermath killing eleven humans and perhaps significant numbers of other animals. (2) The full extent of the destruction from leaking petroleum products from the Macondo 252 well caused by the explosion may never be understood. In addition to the loss of human life, the risk of hypoxia (3) is significant. While "dead zones" presently exist along the coastal regions of the Gulf of Mexico, (4) the end of sea plant life, such as algae, in deepwater areas may hasten the death of aquatic animal life in extensive areas of that ocean system. Then again, the Macondo well's rupture and spill may have no such effect in the long-term. (5) We know for certain, however, that the vessel owners' causation of spilling petroleum products will precipitate extensive debate and disputes, in and out of court, (6) about public policies the Gulfs nations should pursue to minimize the risk of such episodes recurring. Debates will begin with whether the measures implemented in concert with public policies should make a compromised, deepwater wellhead substantially less likely--or altogether impossible. These disagreements will pit the competing national interests of the United States of America (U.S.) and of Mexico (7) and other Latin American nations bordering the Gulf against each other. Interests of individual American states in the realms of economy and ecology will be in conflict. Disagreements will engage industries against governments, and the petroleum-exploration-and-capture industry (8) against economic engines such as tourism, food-harvesting, and recreational exploitation of animal resources of the living Gulf. For-profit enterprises will be opposed by species-preservation advocates (9) urging a wide regulatory spectrum of policies ranging from "keep drilling out of the Gulf altogether," to "ecology primacy," to "balancing of needs" viewpoints. (10) Those several species-preservation interest groups will oppose certain of each others' positions. Game fish are an illustration: advocates of deep sea sport fishing for commercial harvest, shore- and pier-fishing, boat chartering for scuba divers, and fish as life forms are all interested in the Florida marlin's welfare. Vilifying of opponents' representatives will be public and pervasive. An environment of mutual distrust will make accommodating competing viewpoints immensely complex. Adopting public policies and concurrent regulatory schemes will encounter two hurdles. First will be the coherent understanding of what myriad stakeholders already know and continue to learn from the Deepwater Horizon Macondo well experience. Second will be a rational assessment of the sensible, unemotional alternative courses of action, adopting a vision of human engagement with the Gulf. Momentum will arise to allow certain "experts" to take the lead and heavily influence the ultimately derived policies and regulations. This momentum should be opposed with energy; in this conundrum mixing science and ethics, (11) there are no experts. No philosopher king has emerged among the parties engaged in the Macondo well spill calamity and aftermath during its initial ninety days. No one among environmentalists, civil and petroleum engineers, bureaucrats and officials of local, state, and federal governments has assumed the mantle of wisdom. In truth, no one person or modestly-sized group of persons has--or will have--the experience or the ability to formulate how to protect any ecosystem from the disastrous impact of profound environmental disruption. During 2010, no one can do more than speculate whether the Gulfs disruption will be a temporary nuisance, or gauge the magnitude of ultimate damages from the enormous flow of petroleum escaping the ruptured wellhead, whether economic or ecological. There is little reason to "round up the usual suspects" found among the industry "experts" and government leaders who, collectively, failed the American public during the second quarter of 2010. …

The Relocation Dilemma: In Search of "Best Interests"

Abstract: King Solomon had it made; one threat to dismember a child (which litigants in ancient times apparently took rather seriously) resolved competing parental interests (1) No doubt today's judges, presiding over relocation disputes, wish their jobs could be that easy By its very nature, relocation cannot be solved by threats or even negotiation An unemployed custodial parent from New York who finally finds lucrative employment in California cannot be placated with a proposal to live in Chicago just because it is a "mid-way point" In a mobile society--with cross-country and even international relocations being prompted by changing economic circumstances, family needs, remarriage, or health concerns--relocation requests are inevitable We expect our judges to display Solomon-like wisdom in dispensing justice but despite Herculean efforts to serve the "best interests of the child," children inevitably bear the brunt of any forced separation from a loving parent And psychological studies confirm that the younger the child, the more devastating the consequences (2) A study conducted on 1,619 children between the ages of four and six "entering [the] Rochester City School District kindergarten classrooms" concluded that separating children "from one or both parents before beginning kindergarten can increase the [child's] risk for learning difficulties" (3) The study, led by "Sandy Jee, MD, MPH, assistant professor of Pediatrics at the University of Rochester Medical Center's Golisano Children's Hospital," concluded that "divorce, illness, violence," and other situations that cause "temporary or permanent separations from [even one parent are reliable] predictors of which children may require special education interventions" (4) Today, if the relocating parent can establish some lack of interest or involvement by the noncustodial parent, combined with a demonstration that the move is genuinely necessary and will enhance the child's lifestyle in some manner, the courts tend to permit the relocation (5) For example, in Englese v Strauss, the Second Department recently permitted a custodial father to relocate to North Carolina with his two children and post-divorce family to open a restaurant with his parents, even though the father made no documentary showing of compelling economic circumstances to support the move (6) Although the mother's relationship with her older child was strained because he disliked his mother's fiance, the decision was curiously silent as to the impact of the relocation on the younger child (7) I THE DEVELOPMENT OF PROTOCOL New York's current relocation decisions reflect guidelines that evolved during the fourteen year period between 1982 and 1996 Prior to 1996, a New York parent seeking to relocate with a child was obliged to demonstrate the existence of '"exceptional circumstances"' to justify the proposed move (8) The 1981 Court of Appeals' decision in Weiss v Weiss, declaring visitation the "joint right" of the noncustodial parent and the child, made clear that a parent would not be permitted to relocate "absent exceptional circumstances, such as those in which it would be inimical to the welfare of the child or where a parent, forfeited his or her right to such access" (9) In the years following Weiss, a relocating parent bore a heavy burden to prove exceptional circumstances By and large, permission to relocate was limited to situations in which the custodial parent fled to escape domestic violence (10) or situations in which the noncustodial parent (most often the father) consistently failed to exercise his visitation and/or substantially neglected his obligation to remain current in child support payments (11) As a general rule, where both parents were caring and fit custodians involved in their children's lives, a request to relocate to join a new spouse or pursue more lucrative employment was denied (12) In Lavelle v …

Revoking the Irrevocable Buyout: Aligning Equity with Due Diligence in Corporate Dissolution

Abstract: Judicial dissolution of a closely held corporation, the "corporate divorce," is one of the most acrimonious, expensive, and, by almost all accounts, unpopular of legal remedies available in business litigation. Modern corporate statutes tend to reflect this widely held aversion by providing courts and litigants with a variety of alternatives to ending a business's existence. The buyout election, for example, a sort of call option patterned after common law remedies and American Bar Association ("ABA") model legislation, provides one means by which shareholders and corporations can avoid the extreme remedy of corporate dissolution by forcing complaining shareholders to sell their stock to them. But when can these electing shareholders or corporations change their minds about the decision to buy out their adversaries? Many statutes deem the buyout election "irrevocable"--but then allow a court to set it aside if it would be equitable to do so. Such a fluid notion of irrevocability presents challenges. An electing purchaser might have second thoughts about buying a greater stake in a company for any number of reasons: a precipitous decline in business, the defection of key employees, an unexplained loss (or defalcation) of assets, an owner's death; all of which will arise in something of a no-man's-land between formal civil proceedings and private negotiations found in most statutory buyout procedures. With nothing more than the invocation of equity, courts must somehow divine whether a party ought to be allowed to withdraw an irrevocable election to purchase in a shifting landscape of evolving business conditions and competing interests. Not surprisingly, the reported rulings emanating from these disputes defy cohesive analysis. Some further clarity would be invaluable. This article explores a proposed method to hone the broad conception of equity these statutory provisions utilize into something more manageable and easier to grasp, a limitation premised on the commonly understood business term of transactional due diligence. I. INTRODUCTION II. DEVELOPMENT OF THE MODEL STATUTORY BUYOUT ELECTION A. Common Law Origins B. The Model Act Buyout Elections III. SEARCHING FOR A STANDARD IN BUYOUT REVOCATION A. Survey of the Reported Rulings B. The Dilemma of Uncertainty IV. SHAPING t DUE DILIGENCE STANDARD FROM EQUITY A. Fundamentals of Equitable Limitations B. Components of the Vigilance Limitation 1. Awareness 2. Diligence C. Due Diligence in Commercial Transactions V. INCORPORATING A DUE DILIGENCE STANDARD INTO STATUTORY BUYOUT REVOCATIONS A. The Proposed Standard B. Reexamining the Rulings Under the Proposed Standard VI. CONCLUSION I. INTRODUCTION Few areas in business litigation derive more acrimony than a lawsuit to dissolve a closely held corporation. Close corporations are often formed among family members or longtime friends and business partners, the kind of intimate relations that all too frequently carry simmering jealousies, sibling rivalries, personal grievances, real or imagined, all of which invariably become bound in subtle (or not so subtle) ways within the business's day-to-day operations and governance. (1) Bitter personality clashes between individuals can transform into heated commercial disagreements and corporate deadlock. The need to untangle these business relations may indeed be stark, but the separation itself is often freighted with ill will. As the Delaware Court of Chancery once observed, "[e]motions run high, feelings are frayed, and former friends and colleagues find themselves at odds." (2) Judicial dissolution petitions have been likened to a "corporate divorce," and not without justification. (3) But because terminating a corporation's existence necessarily carries a profound impact on anyone connected to its business--the shareholders, employees, customers, vendors, and suppliers may all have considerable stakes, if not their entire livelihoods, invested in its viability (4)--there has arisen over time a prevailing view that, regardless of contention among the owners, involuntary dissolution of a corporate entity ought to be avoided if at all possible and reserved as a mechanism of last resort. …

The Arbitration Fairness Act: Performing Surgery with a Hatchet Instead of a Scalpel?

Abstract: Arbitration of employment disputes has become an increasingly controversial issue in recent years Many plaintiff-side employment lawyers and other commentators have been intensely critical of predispute arbitration agreements This groundswell of criticism has crested with the introduction in Congress of the Arbitration Fairness Act ("AFA") (1) The AFA was proposed to combat perceived injustice arising from "mandatory" employment arbitration, meaning arbitration pursuant to a pre-dispute agreement (2) The AFA's supporters assert that such agreements too frequently are entered into unwillingly or unwittingly on the part of employees; moreover, having waived their right to a judicial forum, employees suffer further injustice due to features of the arbitration process that tilt the playing field against them (3) The AFA seeks to remedy these perceived problems by providing that "no [pre-dispute] arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, franchise, or civil rights dispute" (4) The assurance of fair procedures for the resolution of employment disputes is of paramount importance, and, as a prevalent means of dispute resolution, arbitration warrants close examination to ensure that justice is being served Such examination reveals that, while employment arbitration is controversial, the issues involved are complex Criticisms of arbitration that may have force with respect to certain categories of employees or employment claims, may have less or no application as to other categories But, rather than address this complexity, the AFA would prohibit pre-dispute employment arbitration agreements for all employees and any employment claims (5) This article suggests a more nuanced approach Part I offers a brief history of how employment arbitration has been regarded by courts in New York and the US Supreme Court Part II considers the AFA by examining the perceived advantages and disadvantages of arbitration and, in that context, the shortcomings of the AFA It proposes that the AFA be more narrowly targeted to address more directly the perceived inequities it is intended to correct I A BRIEF HISTORY OF EMPLOYMENT ARBITRATION IN THE COURTS Over the past few decades, New York and federal law regarding employment arbitration has undergone a dramatic change, from suspicion and hostility, to affirmation and support The roots of this change lie in the Federal Arbitration Act ("FAA"), (6) first enacted in 1925 (7) The purpose of the FAA was "to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts" (8) Under the FAA, an agreement to arbitrate is "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract" (9) The FAA preempts state law on the subject of the enforceability of arbitration clauses, and is controlling even though the dispute itself may arise under state law (10) Thus, the New York Court of Appeals has recognized that "regardless of what our own State's policies or case law might dictate in other circumstances, we are bound by the policies embodied in the Federal statute and the accompanying case law" (11) The US Supreme Court has taken the lead in shaping law in this area, and the New York Court of Appeals has followed The US Supreme Court's early resistance to employment arbitration was reflected in Alexander v Gardner-Denver Co, (12) in which the Court allowed an employee to pursue an employment discrimination claim in court despite the fact that a related arbitration had already been conducted (13) When his employment was terminated, Alexander filed a grievance under a collective bargaining agreement, according to which disputes went to arbitration if they were not resolved in negotiations …

Closing the Loophole: Shea's Law and DWI Blood Draws in New York State under Vehicle and Traffic Law Section 1194(4)(A)(1)

Abstract: Every year in New York State, drunk drivers are responsible for approximately 9000 accidents and 400 deaths. (1) On July 13, 2010, New York State took another step to reduce this troublesome statistic with the passage of "Shea's Law." (2) This legislation, which amends the New York State Vehicle and Traffic Law, expands the list of medical personnel who can withdraw blood from a drunk driver without a doctor's supervision, (3) and further marks the closing of a "legal loophole which enabled indisputably impaired drivers to evade prosecution." (4) The source of this "loophole" was former section 1194(4)(a)(1)(i) of the New York State Vehicle and Traffic Law. (5) Under the former statute, a DWI blood draw, performed to test a drunk driver's blood alcohol level, was admissible into evidence only if it was performed in a certain manner by statutorily-enumerated medical professionals. (6) This former statute led to various instances of drunk drivers escaping prosecution because, although blood was drawn in a safe and reasonable manner by a medical professional, the blood draw was not performed specifically according to the statute. (7) The best known example of this was People v. Reynolds, (8) where former Olympic gold medalist Jack Shea, the name-sake of the new bill, (9) was killed by a drunk driver who would completely escape prosecution due to the blood draw. (10) Shea's Law has been pending in the New York State Legislature in various forms since 2006. (11) The bill's recent passage has been lauded as "a commonsense measure," (12) and a "simple and straightforward remedy" (13) in New York's fight against drunk driving. (14) The first section of this comment gives the background and history of drunk driving legislation in New York State. The second section tells the story of Jack Shea and other victims of the loophole which existed in former section 1194(4)(a)(1). The third section outlines and analyzes the problems that accompanied former section 1194(4)(a)(1), including both the Court of Appeals interpretation of the statute and the statute's conflicts with other New York statutes and regulations. The fourth section examines the public policy behind DWI legislation, and that policy's impact on judicial decision-making in New York and other states. The final section examines and analyzes the amended section 1194(4)(a)(i) under Shea's Law. I. DWI LEGISLATION IN NEW YORK STATE New York State has a long and distinguished history of developing legislation and programs to improve highway safety, specifically regarding DWI prosecution. (15) The first DWI law in the nation originated in New York State in 1890--section 158 of the former Highway Law--which provided: "No person owning any carriage for the [conveyance] of passengers, running or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage, who is addicted to drunkeness, or to the excessive use of spiritous liquor...." (16) Additionally, in 1910 the first "modern" DWI statute was passed in New York State, enforcing drunk driving rules against those operating cars with motors. (17) More than a half-century later, New York passed legislation allowing prosecutors to introduce evidence of alcohol in the blood stream for DWIs. (18) This was the first of many chemical testing laws from a legislature that "has clearly expressed its interest in promoting the goal of public safety by enacting legislation providing for compulsory chemical tests to facilitate the prosecution of intoxicated or impaired drivers whose actions result in serious injury or death." (19) Perhaps the most visible legislation in New York's battle against drunk driving was the "STOP-DWI" (20) program, introduced in 1981, which made it lucrative for the counties of New York State to engage in and prosecute alcohol-related driving offenses. (21) These ongoing efforts have positively impacted the safety of New York's highways. …

Reconceptualizing the Law of Nuisance Through a Theory of Economic Captivity

Abstract: I. INTRODUCTION: COMING TO THE NUISANCE OR BECOMING AN ECONOMIC CAPTIVE? Ann and Conrad Riedi lived in the same rent-controlled apartment in Manhattan for forty years. (1) Despite this long-term entrenchment, the Riedis and many of their neighbors are being forced to move to make way for a new subway construction. (2) Due to their relatively low income and inability to pay typical Manhattan rent because of their age and status as retirees, the Riedis may very well be forced to relocate out of the neighborhood and out of a borough in which they have lived most of their lives. (3) The Riedis have, in essence, become "economic captive[s]" for, put simply, their economic situation severely limits their choices as to where to relocate. (4) An economic captive, then, is someone whose housing choices are determined detrimentally by his socio-economic status, providing him with extremely limited options for places to live. (5) Further, the housing available to an economic captive is often in poor repair, in blighted and/or high crime areas, and far from the person's current neighborhood. (6) The classical situation defining the forces of economic captivity is illustrated when relocation by a landowner thereby subjects the mover directly to a nuisance or a nuisance-like activity. For example, acquisition of real property in an industrial area may almost necessarily burden, significantly, the new owner with smog or noise, while relocation to an agricultural community may subject other homeowners to putrefying odors. (7) If the economic captive asserts a nuisance claim, the defendant may then raise an affirmative defense that the plaintiff came to the nuisance; in other words, the defendant and the injurious activity were established prior to the plaintiffs arrival. (8) Whether the plaintiffs status should be considered a countervailing factor or argument to the defendant's affirmative defense that the plaintiff actually came to the nuisance is the central policy issue which must be resolved: specifically, the manner in which society (be it governmental units or private entities) deals with these inherent conflicts presented by a recognized theory of economic captivity. The phenomenon of the economic captive is a reality of modern capitalistic society. (9) Notwithstanding this reality, the question still remains whether a person's socioeconomic status can serve as an effective counter to the defense that the plaintiff came to the nuisance. An examination into how the law should treat economic captives whose presence in a location is inconsistent with a higher use for the land will yield the answer to this question. Examining the efficacy of a variety of approaches leads to the conclusion that the best approach is through the working of managed growth and bonus zoning in tandem in order to achieve some level of harmony amongst a range of demographic groups. (10) The employment of amortization provisions, where the economic captive is allowed to remain in his home for a reasonable period of time, is a necessary component of this solution. (11) Concluding that this approach is the most efficacious leads to the determination that one's status as an economic captive deserves to be included as a factor in the requisite balancing under which a nuisance cause of action is tested initially. (12) However, such a status is not automatically dispositive in dealing with a coming to the nuisance defense and must be viewed in light of the desired goal of protecting the common good. (13) The fact remains, importantly, that there is a place for the economic captive and that individual is not left defenseless in the world of nuisance law. If recognized, the plaintiffs' status as an economic captive should offset, or at least neutralize, the fact that he came to a nuisance and thereby provide him with an avenue for relief. This article will begin with an analysis of nuisance law and its purpose. At the heart of a nuisance action is a fact-specific balancing of competing interests that this article will organize into a general framework for nuisance inquiries. …