Showing papers in "Washington and Lee Law Review in 2007"

The New Path of Immigration Law:Asymmetric Incorporation ofCriminal Justice Norms

Abstract: I. IntroductionThere is an embryonic literature on the growing convergence of two critical regulatory regimes-criminal justice and immigration control.1 As discussed below,2 the two systems intersect at multiple points: Violations of the immigration laws trigger broader, harsher, and more frequent criminal consequences. Indeed, it is no longer rare for refugees seeking asylum to be criminally prosecuted for illegal entry. Conversely, Congress has steadily expanded the list of non-immigration-related crimes that trigger deportation and other adverse immigration consequences, and the sheer numbers of deportations on crime-related grounds have skyrocketed. The underlying theories of deportation increasingly resemble those of criminal punishment. Preventive detention and plea bargaining, longstanding staples of the criminal justice system, have infiltrated the deportation process. Some of the same government actors, including federal sentencing judges and state and local police, are now frequently called upon to perform both criminal and immigration functions simultaneously. Public perceptions of criminals and foreigners have become ever more intertwined. Apprehension and removal of those who violate the immigration laws command increasing priority over programs for the lawful admission of immigrants. And the transfer of immigration functions from the Department of Justice to the Department of Homeland security has changed the politics of immigration in ways that reward officials for prioritizing criminal and other enforcement goals.The trend to import the criminal justice model into the domain of immigration law is unmistakable; it has begun to displace what I shall call the civil regulatory model of immigration law. At first blush, one might expect these trends to be a boon to immigrants, particularly those placed in deportation (now called "removal")3 proceedings. After all, the criminal justice system operates under stringent constitutional and sub-constitutional constraints familiar to all who have taken courses in criminal procedure.For more than a century, however, the courts have uniformly insisted that deportation is not punishment and that, therefore, the criminal procedural safeguards do not apply in deportation proceedings.4 Those and similar principles remain untouched by the gradual importation of criminal justice norms into immigration law. As a result, the criminal justice model has had no discernible benefits for immigrants. It has, however, had some harmful effects, not just on immigrants but on native-born Americans as well.The new literature on convergence chronicles well some of the ways in which the criminal justice model has taken hold in immigration law. But it falls short, I would argue, in failing to showcase the selective, asymmetric nature of this importation process. A pattern has emerged: Those features of the criminal justice model that can roughly be classified as enforcement have indeed been imported. Those that relate to adjudication-in particular, the bundle of procedural rights recognized in criminal cases-have been consciously rejected. Rather than speak of importation of the cnmaial justice model, then, a more fitting observation would be that immigration law has been absorbing the theories, methods, perceptions, and priorities of the criminal enforcement model while rejecting the criminal adjudication model in favor of a civil regulatory regime.To the immigrant, of course, this state of affairs is the worst of both worlds. Is it more broadly desirable nonetheless? This Article argues that it is not. From a procedural standpoint, this asymmetry leaves policymakers with little political appetite for allowing adjudicative fairness and accuracy to temper cost and efficiency concerns. From a substantive standpoint, it leaves them little incentive to balance the government interests in deterring and incapacitating immigration offenders against either the interests of the immigrants themselves or the interests of the U. …

Twenty-Five Years of Hudood Ordinances-A Review

Abstract: Table of ContentsI. Introduction 1292II. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 1295III. Reforming the Zina Ordinance 1298IV. The Protection of Women (Criminal Laws Amendment) Act, 2006 1306V. Conclusion 1313I. IntroductionIn 1979, General Zia ul-Haq promulgated a series of ordinances which were to revolutionize the legal system of Pakistan. ' Zia had come to power two years earlier, in the summer of 1977, in a coup d'etat, which had toppled the government of Prime Minister Zulfikar Bhutto.2 He initially called himself "Chief Martial Law Administrator,"3 but assumed the title of President a year later.4 In 1984, Zia had himself confirmed as President of Pakistan by a referendum, which also gave him a mandate to Islamize the legal system of Pakistan.5 The ordinances introduced into the legal system of Pakistan were ostensibly Islamic criminal laws.6 As a result, theft, consumption of intoxicants including alcohol, extra-marital sex including rape, and making false allegations of adultery were all governed by Islamic criminal law.7 Until 1979 diese offenses had been governed by the purely secular Pakistan Penal Code-legislation enacted in 1860 by the British colonial government and later adopted by Pakistan at the time of independence in 1947.8 Adultery and fornication had not been criminal offenses at all.9Zia's attempt to make the legal system of Pakistan more Islamic was based largely on political motives.10 The country had come into existence following the dissolution of colonial British India in 1947.11 The decades leading up to the withdrawal of the British colonial rulers had been marked by the division of the Indian independence movement along religious lines, with the Muslim minority being represented by the Muslim League.12 The Hindu majority, who outnumbered Muslims four-to-one, was represented by the Indian National Congress-a party which, at least in terms of its constitution, was open to all religious communities.13 The Muslim League's demand for the creation of an independent homeland for Muslims in the event of dissolution of British India was based on the fear that, in a united independent India, Muslims would be oppressed by the Hindu majority.14 Communal tensions and riots in the 1940s reached such threatening proportion that the colonial rulers eventually agreed to the demand of the Muslim League.15 On August 15, 1947, British India was divided into the dominions of India and Pakistan, the latter consisting of a western and an eastern part separated by more than a thousand miles.16 Arguably, a ship sailing from Karachi in West Pakistan could reach Marseille more quickly than it could reach East Pakistan.It was Pakistan's failure to turn itself into an Islamic state which provided Zia with the justification for his coup d'etat.17 The first nine years of independence were marked by tensions between the country's western and eastern blocs.18 The first Constitution of Pakistan, adopted in 1956, made Pakistan an Islamic republic, but it did not change the essentially secular character of the legal system.19 The same applied to the Constitution of 1962.20 An uprising against West Pakistani rule led to the cessation of East Pakistan in 1972, which now called itself Bangladesh.21 Pakistan was now reduced to the provinces of Punjab, Sindh, the North Western Province, and Baluchistan-all geographically contiguous. Pakistan's population was now overwhelmingly Muslim.22 A provision in the 1973 Constitution provided that all laws should be in accordance with Islam, but crucially, this article could not be enforced in a court. …

Justice and Equality in Muslim Family Laws:Challenges, Possibilities, andStrategies for Reform'

Abstract: Table of ContentsI. Introduction 1530II. Discrimination Against Women in Malaysia's Muslim Family Laws 1532III. Challenges to Law Reform as a Means of Change 1536IV. Support for Reform from Scholarship and Activism 1540V. Strategies for Reform 1545VI. Conclusion: Reform is Necessary and Possible 1549I. IntroductionWith the increasing visibility of Islam in the international arena, a great deal of attention has been devoted to the rights of women within Muslim contexts. The American and European media are flooded with stories of women who are denied the right to vote or the ability to drive, forced to wear the hijab,2 or severely and cruelly punished for adultery.3 In fact, one of the most contested sites of discrimination against women is far more subtle and pervasive: the injustice and inequality that occurs within the context of the family, relating to such issues as age of marriage, capacity to enter marriage, finances, divorce, custody, and guardianship. Discrimination and injustice within the family is critically important because of the centrality of the family to women's lives and the ways in which male control over wives, mothers, sisters, and daughters can trickle over into all aspects of society.4Throughout Muslim countries and contexts, Muslim women are speaking out about injustices and discrimination, and they are fighting specifically for equality and justice within the family. This Article outlines the efforts being made by Muslim women in Malaysia to advocate for comprehensive reform of the current Malaysian Muslim family laws. This effort includes developing an understanding of why and how reform of Muslim family laws5 is possible,6 exploring strategies used by women's groups in other countries to push for reform,7 and outlining justifications for reform based on a holistic framework that emphasizes four elements: religious principles, domestic laws and policies, international human rights law, and sociological trends and data that present the lived realities of women.8This Article is divided into six parts. Following this introduction, Part II provides an overview of Muslim family laws in Malaysia and an example of discriminatory provisions in the codified law. Part III presents key challenges to the call for reform by women's rights groups in Malaysia and in the Muslim world more broadly. Part IV discusses critical support for reform of Muslim family laws that is increasingly being provided by scholars and activists, and Part V outlines some strategies that women's groups in Malaysia, following examples from other parts ofthe world, are using to advocate for reform. Part VI concludes the piece by arguing that reform is necessary and possible, and Muslim women's groups can and are leading the way in the push for reform.II. Discrimination Against Women in Malaysia's Muslim Family LawsMalaysia's population is multi-religious, with recent estimates indicating that 60.4% ofthe population is Muslim, 19.2% Buddhist, 9.1% Christian, 6.3% Hindu, 2.6% Confucian, Tao, and other religions customary in China, and 2.4% other or no religion.9 Malaysia has a dual court system, with shari'ah- and fiqh-based10 laws that apply only to Muslims and include matters specified in the State List of the federal Constitution such as matrimonial law, charitable endowments, bequests, inheritance, and offenses that are not governed by federal law (these include matrimonial offenses, khalwat (close proximity), and offenses against the precepts of Islam).11 The power to legislate these matters lies with each state legislature and state sultan, with the federal Parliament legislating such matters for the federal territories of Kuala Lumpur, Labuan, and Putrajaya. …

The Legacy of Colonialism: Law and Women's Rights in India

Abstract: Table of ContentsI. Introduction 1316II. The Colonial Context and Competing Legal Authorities 1320III. The British Feminist Reform Movement and the Civilizing Mission 1324IV. Reforms in Age of Consent Law 1326V. Widow Remarriage, Reversions, and Dower Reforms 1332VI. Abortion and Female Feticide in Post-Colonial India 1338VII. British Feminists, Colonial Authorities, and Native Elites Negotiate the Female Body 1345I. IntroductionPre-colonial India was characterized by a pluralistic and fragmented cultural, religious, and political structure in which there was no monolithic Hindu, Muslim, or Christian authority.1 Multiple tribes, castes, sects, and family groupings crossed religious and political lines, creating a heterogeneous population that may have had a definite notion of authority but no corresponding notion of legality.2 Much of the law of the period was customary, with adjudication within segregated communities, which gave rise to a common interpretation by outsiders that pre-colonial India lacked law altogether.3 When the East India Company acquired the right to collect revenue in Bengal, Bihar, and Orissa in 1765, the company had to devise a new political and legal structure for the newly-acquired dominions.4 British colonial rule in India began primarily as a political expedient through this quasi-private entity, the East India Company, to reap the benefits of imperialism without setting up a fully functioning sovereign state.5 Colonial rule changed dramatically after 1858, when the company's rule was replaced by the Crown as the legal sovereign.6 Throughout the Victorian period, colonial authority was largely premised on an ideology of the civilizing mission, both in Indian and English terms.7 Within India, the company claimed legitimacy through its mission of defeating and replacing the Mughal rulers, who had been the source of aristocratic power and succession.8 Legitimacy was gained for the English population at home through the self-proclaimed role of "civilizing" the natives by initiating reforms which represented the enlightenment spirit of the British, the harbingers of progress and modernity.9After the transfer of power to the English Crown in 1858, there were two competing groups vying for political and legal legitimacy within India: the British colonial authorities and the native male elite.10 In the ebb and flow of political bargaining, the colonial governors generally ceded authority in family law matters to the customary and/or canonical law ofthe dominant religions, which had already gathered together groups that, in pre-colonial times, might not have accepted the authority of a monolithic Hindu or Muslim creed.11 Negotiating those relationships and situations that would be governed by Hindu or Islamic law or would be governed by the secular (though clearly Christian) colonial law was a difficult task throughout the Victorian era.12 In somewhat simplified terms, both the British interpretation of India as a society driven by religion and their own description of its glorious past compelled the colonial authorities to accommodate traditional/religious laws of the religious communities within their efforts to secularize and "enlighten" Indian society. On the other hand, this glory of the ancient Indian past was utilized by the Indian elite to discourage the logic of the civilizing mission. The civilizing mission was deemed a way of emasculating Indian men by asserting that they were not capable of taking care of their own women.13This tussle over legal and political power between the native elites and the colonialists was fought on the backs of Indian women because it was the alleged degraded position of Indian women and the barbaric actions of Indian men that justified the colonial mission in the first place. …

"Sociological Legitimacy" in Supreme Court Opinions

Abstract: I. IntroductionIn A Political Court, Judge Richard Posner dismisses the reasoning of many Supreme Court opinions as "professional varnish"1 and a "mask,"2 behind which the real work of deciding cases takes place. Like Judge Posner, many readers of the Court's decisions believe we can distinguish between two kinds of reasons: (a) those that do the work of deciding the cases, and (b) those that are put forward for the purpose of creating an impression of judicial deference to text and history.3 These are the work horses and the show horses of constitutional argument. The work horses consist largely of value choices between competing political and social goals, while the show horses include, at least some of the time,4 the "intent of the framers," precedent, and the application of multi-part tests. Scholars have accumulated considerable evidence of the existence of show horses: The Court advances historical arguments when doing so suits the Court's purpose and ignores them when they are inconvenient.5 It cites precedents to support its rulings, yet acknowledges that precedent is a weak constraint in constitutional cases.6 Its formulae amount to "an attempt to achieve one effect: that the words, once in place, will do the work as the judges watch, recording the score."7 Meanwhile, the majority's political and social aims may drive the outcomes of hard cases even when they receive comparatively little attention in the opinions.8 Commentators give short shrift to the show horses. They argue over whether a given argument falls into the show horse or the work horse category, lambaste the show horses, and then set them aside in order to pursue serious constitutional analysis.9 A widelyshared premise of constitutional scholarship is that the Court ought to give true rather than false reasons.This Article rejects that premise. My thesis is that the Court's opinions may serve worthy goals and earn our respect even if other reasons account for outcomes. To borrow Judge Posner's metaphor, I believe that the Court's professional varnish and its masks deserve more scholarly attention and a kinder assessment than they have received. Deployed with skill and prudence, false (but widely acceptable) reasons help maintain the appearance that the Court is in step with the broad public, to whom it is ultimately accountable. Adept appearance management can succeed even when segments of the public differ sharply among themselves as to the norms of constitutional adjudication. In this way, putting an attractive face on its rulings may serve the Court's vital institutional need for public confidence. Appreciating the role of appearance management in ensuring the Court's institutional effectiveness enhances our understanding of the opinions and opens the door to a whole new set of criteria for evaluating them. In making these points, I borrow Richard Fallon's illuminating distinction between "legal legitimacy" and "sociological legitimacy."10 Legal legitimacy requires that an opinion candidly state the reasons for the outcome.11 Sociological legitimacy is achieved by an opinion that secures public acceptance of the Court's rulings.12 Badly-reasoned opinions may lack legal legitimacy, yet succeed in winning sociological legitimacy. There may be a difference between reasons that will please the Court's audience and those that do the work of deciding cases.As the term "sociological legitimacy" signals, this Article treats the Justices as social actors who have a common interest in the Court's success as an institution. Like anyone who does not live on a desert island, the Court, in order to achieve its goals, has to be concerned with what other people think of it.13 In any given case, and especially in the most prominent ones, the Court must take care to behave in a way that inspires or maintains public confidence, even as it insists on a large role for itself. In the course of resolving a case, the Court needs to make not only legal decisions, but also strategic choices as to the contents of the opinion. …

Rules Versus Standards in Antitrust Adjudication

Abstract: Table of ContentsI. Introduction 50II. From Rules to Standards 55A. Collusion 57B. Exclusion 65III. The Possibility of (Real) Rules 71IV. Efficiency Considerations 80A. Costs of Promulgating and Administering the Legal Command 81B. Underinclusion, Overinclusion, and Incentive Effects 84C. Choice of Ultimate Decision-Maker 91D. Strategic Manipulation and Public Choice 95E. Synthesis and Decisional Principles 98V. Non-Efficiency Considerations 101A. Distributive Justice, Personal Autonomy, and Equal Treatment 101B. Maintaining the Expressive Core 106VI. Conclusion 109I. IntroductionAntitrust law finds itself in the midst of a creeping transition from rules to standards. Adjudicatory categories that have long held sway-such as the dichotomy between the per se rule and the rule of reason for collaborative conduct or categorical rules of liability and immunity in monopolization law-are progressively being replaced by a multi-factor, ex post approach to antitrust adjudication. As antitrust has become de-politicized and de-ideologized, flexible technocratic expertise has replaced legalist conceptualism. Once the stars of the antitrust courtroom, lawyers now play the supporting cast to economists. Economic theory and post-hoc, contextual examination of facts, rather than a priori legal categories, take center stage in antitrust proceedings. Gone are the days when the Supreme Court advocated stark antitrust rules and condemned "rambl[ing] through the wilds of economic theory in order to maintain a flexible approach."1 The wilds are being tamed, and adjudicatory flexibility favored.Why this transition? The Chicago School's dramatic influence on antitrust law since the mid-1970s accounts for a significant part of the story. Economic theory has rehabilitated practices once condemned as per se illegal because courts thought it a waste of time to see whether that conduct might be justified by efficiency considerations.2 Full-blown review of the context and motivation of practices once viewed as necessarily anticompetitive often reveals that they are competitively benign.3 Yet the move toward greater adjudicatory flexibility-the move from rules to standards-cannot be attributed solely to a less interventionist preference. In recent years, the growing inclination toward fulsome review of the facts has led a number of courts to reject bright-line rules that would have immunized defendants from liability. In monopolization cases in particular, prominent decisions have emphasized the need to consider the fullness of the defendant's conduct on a case-by-case basis, thus denying defendants the sort of categorical legal rules most helpful for avoiding jury trials.4 It appears that the move toward standards has been motivated in part by a sense that antitrust cases are too complex and socially important to turn on simplistic legalist commands.If history is a reliable teacher, the pendulum will eventually swing back toward rules. Morris Cohen once noted that "periodic waves of reform during which the sense of justice, natural law, or equity introduces life and flexibility into the law and makes it adjustable to its work" are often followed by periods where "under the social demand for certainty, equity gets hardened and reduced to rigid rules. …

Offshore Gambling: Medical OutsourcingVersus ERISA's Fiduciary Duty Requirement

Abstract: "Medical care in America has become dangerously expensive."Dr. Arnold S. Relman1I. IntroductionThe unprecedented growth of science and technology in the twenty-first century has led to a world interconnected in a way that was once unimaginable. Borders become nonexistent as individuals, societies, and economies connect and melt together under the banner of globalization.2 For better or worse, outsourcing has always been part of the globalization trend.3 For decades, U.S. corporations have been reducing costs by outsourcing operations and capitalizing on the abundance of natural and human resources in Asia.4 Today, corporations are not the only ones seeking the cost savings of Asia. In 2005, over 55,000 Americans traveled to Bumrungrad International Hospital in India for surgeries, leaving the United States and trusting their bodies to foreign doctors and surgeons.5 At a time when approximately 42 million Americans do not carry health insurance,6 many uninsured Americans are enticed by the option of a surgical procedure that costs as little as one-tenth of the equivalent surgery in the United States.7 The tens of thousands of dollars uninsured Americans save via medical tourism have not gone unnoticed by the rest of the U.S. health care industry. Private companies, health medical organizations, and even states are exploring methods to utilize medical outsourcing to keep health care costs in check.8 Although medical outsourcing may appear on the surface to be an attractive alternative to the out of control costs in the United States health care system,9 the reality of endorsing medical outsourcing is much more complex. This Note examines the interplay between the fiduciary duty imposed under the Employee Retirement Income Security Act (ERISA) of 1974(10) and the cost savings available to private companies and health medical organizations, and argues that such entities cannot offer plan participants medical outsourcing without violating ERISA's fiduciary duty requirement.Part II provides an overview of ERISA's scope and goals, focusing on the fiduciary duty ERISA imposes upon plan administrators and which entities within the health care system are subject to the fiduciary duty.11 The Part concludes with an examination of the corollary duty of disclosure and the legal remedies for plan participants when fiduciaries violate their duties under ERISA.12Part III examines the rise of medical tourism and the benefits and risks associated with the practice. The Part discusses the legal risks associated with medical tourism and the motivating factors that drive patients abroad for medical services.13 Finally, Part III discusses attempts by companies, health medical organizations, and states to utilize medical tourism via medical outsourcing in their coverage plans.14Part IV discusses whether medical outsourcing violates the fiduciary duty imposed under ERISA in light of recent Supreme Court jurisprudence. The Part explores arguments both for and against ERISA liability and concludes that although medical outsourcing does not result in a de jure violation of ERISA's fiduciary duty, the financial incentives to both plan participants and plan administrators create a situation resulting in a de facto violation of ERISA's fiduciary duty. In conclusion, this Note suggests appropriate steps Congress should take in order to ensure that the vision and purpose of ERISA remain protected as health care evolves in a globalized society.II. ERISA: An OverviewA. ERISA's Scope and PurposeThe Employee Retirement Income Security Act of 1974(15) reflects the government's belief that employee benefit and welfare plans play such an important role in interstate commerce that these plans represent a national public interest.16 Therefore, ERISA seeks to ensure the sound management and application of employee benefit and welfare plans17 via the establishment of "minimum standards . . . assuring the equitable character of such plans and their financial soundness. …

How the Door of Ijtihad Was Opened andClosed: A Comparative Analysis ofRecent Family Law Reforms in Iranand Morocco

Abstract: Table of ContentsI. The Question 1500II. The Iranian Case 1502III. The Moroccan Case 1505IV. Comparison and Conclusions 1509I. The QuestionIn this working Comment, I compare the politics and dynamics of recent family law reforms in Iran and Morocco. In both countries, the source of family law is Islamic jurisprudence or fiqh-the Twelver Shi'a School in Iran, and the Maliki Sunni School in Morocco-whose rulings were codified and grafted onto a modern legal system during the twentieth century. As in other schools of Islamic law, these rulings privilege men in marriage and grant them unilateral rights in divorce and polygamy.1 Since codification, women in both countries have struggled to achieve reforms and a more egalitarian family law. The gains of Iranian women have been erratic and the reforms modest and incremental, while women's gains in Morocco have been steady and the reforms radical. In February 2004, Morocco enacted a new family code that incorporates the principle of equality in marriage, thus casting the classical Maliki law on which it is based in a new light.2 This is the most substantive and radical reform of family law achieved by women's activism in any Muslim country. Previous reforms either were not so comprehensive, were granted from above (as in Tunisia), or were accomplished by putting the Islamic framework aside (as in Turkey).3My central questions are: How, and by what processes, did Moroccan women succeed in bringing about radical reforms of Maliki law, which in many ways amount to nothing less than "opening the gate of ijtihad'?4 And, how and why have Iranian women failed thus far to do the same with Shi'a law? These questions acquire poignancy in view of both the claim of Shi'a jurists that the gate of ijtihad is open in Shi'a law, as well as the emergence of novel jurisprudential thinking in Iran since the 1979 Revolution.The genesis of these questions lies in my earlier research on the theory and practice of Islamic law in Iran and Morocco. Between 1985 and 1989, I did fieldwork in family courts in Tehran, Casablanca, Rabat, and Sale, studying marital disputes that made their way to courts. I focused neither on Islamic jurisprudential texts (fiqh) nor on legislation, but I tried to understand the relevance and operation of fiqh-based family law by examining court cases and litigants' strategies.5 My study revealed that in Iran-despite the absence of a viable women's movement at the time, and despite the "return to Shari'a" and the application of family law in courts headed by clerical judges-women fared better in law, and in the event of marital breakdown, they had more bargaining cards and greater access to the courts. I observed how women in Iran would use the courts as an arena to renegotiate the terms of their marriage contracts, and how some succeeded in turning on their head those elements in the contracts that gave men power. By contrast, in Morocco-where a vibrant and vocal women's movement existed, but also where family law was applied in "secular" courts-women had fewer bargaining cards in marriage and less ability to use the courts as such a forum for negotiation.6In the two decades since that fieldwork, both my interests and my approach have changed, and I have shifted my research focus to the construction of gender in fiqh and the possibility of developing a feminist jurisprudence within an Islamic framework.7 I conducted further field research in Iran between 1992 and 2000, but I did not return to Morocco until early 2006, when I did a short period of research. Immediately afterwards, following an over five-year absence, I also returned to Iran. At that time, I came to appreciate the different trajectories that Iranian and Moroccan family law reforms and women's movements have followed since the late 1980s. …

Putting Your Eggs in Someone Else's Basket:Inserting Uniformity into the UniformParentage Act's Treatment ofAssisted Reproduction

Abstract: I. IntroductionIn August 2005, the California Supreme Court issued a landmark decision in the area of family law.1 In KM. v. E.G.,2 the court ruled that "both members of a lesbian couple who plan for and raise a child born to either of them should be considered the child's mothers even after their relationship ends."3 The court's ruling generated a healthy amount of media attention across the country.4Although K.M. v. E.G. produced the most attention, contrasting it with Steven S. v. Deborah D.,5 a less well known California case, highlights the major conflict in this Note-that is, that statutes regarding gamete donation discriminate against donors based solely on their gender. Both the California cases involved gamete donors-those who have donated sperm or eggs to assist someone else in assisted reproduction-who had relationships with the gestating mothers of the children resulting from their respective donations.6 The two cases yielded disparate results, largely because Steven was statutorily prohibited from claiming parental rights based on his gender;7 however, K.M.'s status as a donor is not addressed by statute, resulting in the creation of a new rule that favors K.M. based on her gender.8Even though both cases discussed in this Note occurred in California, the problem of disparate treatment for gamete donors based on their gender is one of national importance that is likely to occur in the future. A recent case in the Washington Supreme Court,9 the California cases10 decided on the same day as KM. v. E.G., and several other cases from around the nation, decided between 1999 and 2005," highlight the increasing trend of these types of suits. Cases dealing with artificial insemination are hardly new phenomena in American case-law,12 but assisted reproduction involving same-sex couples is a new and relatively unsettled area of law.13Despite the fact that courts have often been called on to resolve these novel cases, courts are a less suitable forum for advancing the law on this new, yet growing, trend in family law because of the likelihood of inconsistent rulings from state to state.14 Instead, legislatures should seek a uniform and nationally adopted rule15 that serves to protect families, as well as the best interest of the child, by allowing those who have bonded with children to continue to raise, support, and love them.As the law currently stands, the interests of same-sex couples are not addressed in statutes dealing with artificial insemination and assisted reproduction.16 The Uniform Parentage Act (UPA) and the statutes of most states17 approach the idea of assisted reproduction based on gender, in that they assume that only a male donor would have an interest in claiming parental rights in a child.18 The language of the revised UPA § 703 assumes that only a man would provide sperm with the intention of becoming a parent ofthat child, but fails to mention a woman who might donate an egg with the same intention.19Instead of ensuring gender equality, many current statutes focus on the rights of unmarried women to procreate using artificial insemination, which is arguably an acceptable, and even desirable, societal objective.20 Assuming that society does find that allowing a single woman to take advantage of assisted reproductive procedures is a valid goal, surely that goal does not preclude another valid goal-that of allowing same-sex couples also to enjoy the benefits of assisted reproductive technologies.21 In furtherance of that goal, therefore, state legislatures should not focus on the gender of the donor but rather purely on the intentions of the donor, male or female, and those of the woman who is the recipient of the donation and the birth mother of the child.This Note examines the problem of treating the genders differently in gamete donation cases, while also effecting a new rule courts should follow in determining parentage in egg and sperm donation cases. …

Outing Outcomes: An Empirical Study of Confidential Employment Discrimination Settlements

Abstract: Table of ContentsI. Introduction 112II. The Empirical Landscape 117A. Global Studies 118B. Discrimination Type-Specific Studies 123III. The Chicago Dataset 125A. The Genesis of the Project 125B. The Content of the Dataset 129IV. The Outcomes: Measuring Success 139A. Refining the Dataset: Class Action and Multiple Party Litigation 139B. Gross Amounts of Recovery 144C. Gross Amounts of Loss 151D. Level of Success 152V. Lessons from the Data 157VI. Conclusion 160I. IntroductionNobody really knows what happens to employment discrimination claims in the federal courts. Of the more than 17,000 cases terminated in 2005, only 535, or 3.4%, went to trial.1 Perhaps another 25% of these were resolved by pre-trial motions.2 It is generally assumed that some 70% of these cases end in settlement.3 But this is only an assumption, because employment discrimination settlements are almost uniformly governed by private contracts containing confidentiality clauses.4 Often, the court records merely indicate that these cases have been voluntarily dismissed, and even when there is an indication of settlement, no data reflecting the terms are available. Thus, these settlements have been invisible in the burgeoning empirical scholarship about employment discrimination outcomes-until now. This Article analyzes the outcomes of close to 500 employment discrimination cases resolved by magistrate judges in the Chicago federal district court. Beginning in 1999, what I will call the "Chicago Project" established a coded dataset of settlement terms without any identification of parties, so as to comply with confidentiality agreements.5Why do settlement outcomes matter?6 For the same reasons that verdicts matter: They affect public perceptions and public policy. The public policy discourse about employment discrimination is highly contested, with divergent competing narratives. Are these claimants whiners and complainers, out to make a quick buck on meritless allegations? Or are they true victims of the subtle but significant forms of discrimination that still abound in the workplace, who do not receive fair and unbiased treatment in the courts?Conservative pundits assert that employers are being held hostage by the discrimination laws.7 They are besieged by frivolous claims and forced into nuisance settlements to avoid out-of-control legal fees. If they risk litigation, they are at the mercy of jury whims that can lead to crippling awards. Employment discrimination claims are a sub-set of the litigation explosion that is crippling American business and making us non-competitive in the global marketplace. Capitalizing upon and fueling these fears, insurance companies now offer "employment practices liability insurance," to protect against runaway expenses, with websites claiming that, for example, "settlements in [sexual harassment] cases in 2003 exceeded 50 million" dollars.8 The media also contribute to questionable representations of employment discrimination litigation. One study found that newspaper reports reflected an 85% win rate for plaintiffs with average recoveries of $1. …

Moroccan Women in Europe: Bargaining for Autonomy*

Abstract: Table of ContentsI. Introduction 1387II. The New Moroccan Family Code: A Reform That Is Faithful to Islamic Tradition 1387A. Reforms Concerning the Status of Women 13901. Marriage 13902. The Dissolution of Marriage 1391B. Reforms Concerning the Status of the Child 13931. Filiation 13942. Legal Representation and Custody 1396III. Marriage and Its Dissolution in Moroccan Law: What Are the Implications for Moroccans Residing in Europe? 1398A. The New Moudawana: A Code Concerned About the Family Life of Moroccan Nationals Residing Abroad.........13981. (Civil) Marriage of Moroccan Nationals Residing Abroad (Articles 14 and 15) 13992. Conditions Regarding the Form of Marriage (Articles 16 and 17) 14023. Administrative Formalities and Procedures Prior to Marriage (Articles 65 and 69) 14044. Recognition of Divorce Decrees Issued by Foreign Jurisdictions (Article 128) 1407B. The Emancipatory Potential of the New Moudawana: Combining Moroccan Domestic Law and Private International Law 14091. The Double Celebration of Marriage 14092. The Modelization of the Effects of Marriage and Its Dissolution 1410IV. Conclusion 1414I. IntroductionThe analysis that follows is subdivided into two parts: Part II summarizes, as succinctly as possible, the main lines of the new Moroccan Family Code,1 while at the same time expressing some reservations about its claim to be innovative. Part III discusses the impact-real or potential-of the new Moudawana on the lives of families where one or more members reside abroad. I seek to bring the most constructive analysis possible of the various options available to Moroccans residing abroad (MRA), either in applying Moroccan domestic law or by the techniques of private international law, in order to, at best, balance the rights and obligations of each household member while bearing in mind the concrete circumstances and individual needs in each situation.II. The New Moroccan Family Code: A Reform That Is Faithful to Islamic TraditionIn comparison to the former Moudawana,2 the new Code is characterized by its clearer style, at least in the Arabic version, and by the abundance of rules, grouped into four hundred articles.3 On the whole, however, the new Code is arguably in continuity with the former one, as both draw inspiration from the same sources.4 The new Code is also clearly in line with the Islamic tradition governing family law. It may even be said that the rules of the new Code elevate the principles of Islam in this field into mandatory rules for the following issues, treated in sequence: marriage, the dissolution of marriage, filiation, legal capacity, and wills and succession, since the Code mandates the intervention of the Public Prosecutor's Office in all of these matters.5This observation may be seen as too severe. Yet, there is no lack of evidence to this effect. By virtue of Article 400, the last provision of the Code, judges must follow the lead of the Malikite rite6 absent an available, incomplete, or imprecise written rule of law.7 Article 400 of the new Moudawana confirms, in a sense, the prohibition against Moroccan judges relying on sources other than Islamic ones in the area of family relations. …

Trademark Extortion: The End of Trademark Law

Abstract: I. IntroductionThe federal trademark law of the United States, the Lanham Act,2 is now sixty years old. Commentators often describe it as "an extraordinary success."3 The most famous trademarks, such as Coca Cola or Microsoft, are now valued at over $70 billion each.4 However, what data do these commentators rely upon when they say the Lanham Act is an extraordinary success? Who benefits by this "success"?On January 29, 2007, the New York Times ran a front-page article indicating that Levi Strauss & Co. was using trademark litigation to secure market share, even while the Levi's blue jeans continued to tumble in popularity.5 For people knowledgeable about trademark law and practice, what makes this newspaper article noteworthy is not that Levi's is engaged in such conduct but that this notion has finally made it to the popular press. All trademark holders6 are encouraged to engage in this conduct. That is, virtually all trademark holders use trademark litigation to secure market share by suing competitors and thereby increasing the competitor's cost of market entrance or market continuation.7This is not an exceptional thesis statement for people knowledgeable about trademark law and policy. However, documentation of this fact has been sparse. This Article documents this reality.Of course, trademark holders must police their trademarks or suffer the fate of a court subsequently finding that trademark holders acquiesced to infringing uses or that the mark now lacks distinctiveness.8 Therefore, when truly infringing9 or dilutive10 conduct is detected, the trademark holder really must act.11 The trademark holder does not have to sue every infringer or send cease-and-desist letters regarding every conflicting use. The trademark holder needs only to be reasonable.12 If long periods of infringing use are not objected to, the trademark holder may experience difficulty in subsequently enforcing that mark.13 Therefore, policing the mark is a necessary part of trademark maintenance.14In the normal course of conduct, the trademark holder sends a cease-anddesist letter to an offending user of a mark and objects to that usage.15 If the other party ignores the letter or responds that it will not cease use, an infringement or dilution lawsuit may result. This is the normal, rational course of conduct in trademark litigation.Today, trademark holders are using this course of conduct to expand their trademark rights, not just to object to truly objectionable uses. That is, some trademark holders send thousands of cease-and-desist letters to the point that there are now "sample" cease-and-desist letters available on the internet.16 These cease-and-desist letters are followed by hundreds of trademark infringement filings.17 These cases are almost never prosecuted to a conclusion on their merits. In fact, if prosecuted to a trial on their merits, the trademark holder/plaintiff would likely lose because they are not very meritorious claims.18 This conduct is referred to as a "strike suit."19 These lawsuits and, in the trademark context, cease-and-desist letters have a different objective than to merely stop the use or conduct of the would-be defendant. Their objective is to raise the cost of market entrance or continuation for the competitor.One result of this conduct is that a small fraction of all lawsuits filed actually reach trial. Only 1.3% of federal trademark cases terminated after or during trial in 2006.20 Although much is said about litigious Americans,21 the ratio of trademark cases that reach a trial on the merits continues to go down,22 all while the total number of cases filed continues to go up.23 Of course, there may be several causes for the shrinking percentage of cases that make it to a trial on the merits (e.g., money, time, etc.). Another possible cause of this decrease is the prevalence of strike suit conduct.This strike suit conduct is also prevalent in the registration stage of the trademark before the Patent and Trademark Office (PTO). …

"Big Love"?* the Recognition of Customary Marriages in South Africa

Abstract: This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.

Controlling Executive Compensation through the Tax Code

Abstract: I. IntroductionThe topic of executive compensation has received a great deal of recent attention from the news media, courts, and policymakers. Newspapers have reported on the seemingly exorbitant pay packages of chief executive officers (CEOs) of high profile companies.1 Disney's severance arrangement with its former CEO Michael Ovitz has made its way through the Delaware court system.2 The securities and Exchange Commission recently promulgated lengthy new regulations aimed at improving the transparency of certain executive pay components.3 With the intent to limit executive compensation, Congress is currently considering a bill that would impose tax penalties on deferred compensation amounts in excess of $1,000,000.4 And President George W. Bush, in a recent speech on Wall Street, exhorted boards of directors to "step up to their responsibilities" and ensure that "salaries and bonuses of CEOs [are] based on their success at improving their companies and bringing value to their shareholders."5The topic of executive compensation has also generated significant academic discussion. For instance, in their highly influential book Pay Without Performance,6 Professors Lucian Bebchuck and Jesse Fried argue that significant corporate governance failures have led to unduly generous executive pay packages and propose fundamental reform measures to resolve these failures.7 Their arguments and proposals stimulated a whole wealth of academic literature.8Yet in all of this discussion, there has not been any significant discussion or analysis of Congress's heretofore most direct attempt to control executive compensation amounts. In 1993, during another period of intense criticism of executive pay packages, Congress enacted § 162(m) of the Internal Revenue Code, which generally disallows public companies a deduction for nonperformance-based compensation in excess of $ 1,000,000 paid to the CEO and the next three highest paid executives. The purpose of this legislation was to enhance shareholder wealth in two ways: by reducing the overall level of executive compensation and by influencing the composition of executive compensation arrangements in favor of components that were more sensitive to firm performance.9During this time of mounting criticism of executive compensation norms, there is political pressure on Congress to take further measures to intervene in the relationship between the corporation and its managers. One such measure is the $1,000,000 limit on deferred compensation described above.10 Other similar proposals are pending.1' Before taking these new measures, however, Congress ought to first reflect upon the effectiveness of § 162(m) in achieving its intended results.The primary goal of this Article is to evaluate the efficacy of § 162(m). I consider the likely effect of § 162(m) under the two currently prevailing (but opposing) views of how executive compensation arrangements are negotiated in the public company context.12 Under one view (the arm's length model), the corporation's board of directors negotiates effectively on behalf of shareholders in setting management compensation.13 Under the other view (the managerial power model), as a result of structural biases and other problems, the board is captured by management and is therefore willing to overpay management.14 Under the managerial power model, the only meaningful constraint on directors and management is the risk that relevant outsiders would perceive the compensation amounts as egregious.15 To mute this constraint, the board and management collude to disguise and understate the true value of executive compensation, according to adherents of the managerial power model.Ultimately, this Article concludes that, under either model, § 162(m) is likely ineffective. Instead of increasing shareholder wealth by limiting executive compensation and aligning executive incentives, § 162(m) probably has the opposite effect of decreasing shareholder wealth. …

The Failure of Economic Interpretations of the Law of Contact Damages

Abstract: The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory of contract law. Contractual liability - like virtually all civil liability - is structured around the concept of bilateralism, meaning that damages are always paid by defeated defendants to victorious plaintiffs. Ultimately, economic accounts of this basic feature are unpersuasive. This criticism, however, leaves untouched many of the key economic insights into the doctrine of contract damages. The limited failure of economic interpretations points toward a principled accommodation of both autonomy and efficiency in a single vision of contract law where notions of autonomy provide the basic structure and economics fills in most of the doctrinal detail.

Lose the Illusion: Why Advertisers' Use ofDigital Product Placement Violates Actors'Right of Publicity

Abstract: I. IntroductionJennifer Aniston is a well-known actress who rose to stardom by portraying the fictional character Rachel Green on the popular television series Friends. As she became more of a household name, the commercial value of her identity increased such that companies were willing to pay her to appear in their advertisements or on the packaging of their products. Traditionally, these companies would work with Aniston up front in order to create an endorsement deal suitable to both parties. Aniston would remain free to bargain for her own terms or even to reject advertising contracts outright. When Friends ended, Aniston went on to star in many Hollywood movies and has continued to enter into deals whereby companies use her image to help sell their products. The world of advertising is changing, however, and Aniston may soon help companies sell their products in endorsements which she never approved ofnor even knew were going to take place.Modem technological advances-such as digital recording devices like TiVo, online television episodes, and downloadable shows-now allow viewers to bypass traditional television advertisements and thus watch programs like Friends without commercial interruption. As a result, companies are starting to market their merchandise in formats other than the traditional thirty-second commercial. One such method, digital product placement, can take place without viewers-or actors-ever recognizing that it has occurred. Although product placement has long been used in television shows, usually to the knowledge of consumers and actors alike, digital product placement is a more recent phenomenon that poses many potential problems for actors like Aniston because it occurs after filming is complete. This Note addresses many of these issues and concludes that, if actors like Aniston properly craft their arguments, they can claim that a company's use of digital product placement has violated their right of publicity.Part II of this Note discusses the advent of digital technology that enables viewers to skip traditional commercials and notes how companies have responded by turning to alternative advertising methods such as digital product placement.1 Part III outlines some reasons why consumers and artists may not have much legal ammunition against digital alterations to television shows: (1) past consumer calls for product placement disclosure have failed; (2) the "work made for hire" doctrine of the Copyright Act ensures that television studios rather than actors own the copyright in an actor's performance; and (3) actors currently enjoy no moral rights protection in the United States.2 In Part IV, this Note addresses some of the potential implications of digital product placement and notes a few solutions that commentators have previously suggested.3 Part V, however, points out that despite these suggestions, digital product placement is growing ever more beneficial for television studios and advertisers but provides no corresponding benefits for actors.4 Thus, in Part VI, this Note provides an overview of the right of publicity in order to determine whether actors can rely on this doctrine to fight troublesome digital product placements.5 Part VII evaluates whether the Copyright Act preempts an actor's state law right of publicity claim and concludes that in certain situations, it does not do so.6 Finally, Part VIII concludes that to bring successful right of publicity claims, actors will have to sue the advertising companies instead of the television studio. Doing so will ensure that actors avoid federal preemption, while guaranteeing that they receive some recourse in light of the onslaught of digital product placement.7II. Digital Advances Have Forced Companies to Rely on Nontraditional Advertising MethodsThe last century has seen technological growth in nearly every realm of life, from the birth of the Internet to electric cars to satellite radio. The world of television has experienced numerous technological advances as well. …

Lessons from Islamic Polygamy: A Case forExpanding the American Concept ofSurviving Spouse So As to IncludeDe Facto Polygamous Spouses

Abstract: Table of ContentsI. Introduction 1462II. Transcendental Nature of Values Contained in the Spirit of Islamic Law 1465III. History of American Jurisprudence's Approach to Polygamy.... 1467IV. Methods for Implementing the Egalitarian Spirit of Early Islam in Polygamy 1474V. A New Redefinition of Surviving Spouse in Estate Distribution 1478VI. Conclusion 1480I. IntroductionIt is reported that President Lincoln responded to a group of congressmen eager to step up the early campaign against polygamy with an anecdote about an old log on his childhood farm: "It was too heavy to move, too hard to chop, and too green to bum. So we just plowed around it."1 When it comes to de facto polygamy,2 our jurisprudence has traditionally adopted a policy similar to that enunciated by President Lincoln. Utah has traditionally stood as the symbol for the practice of polygamy in the United States.3 What is less discussed, however, is that multi-party unions are not only limited to Utah, Church of Jesus Christ of the Latter-day Saints, or Islam.4Although polygamist Mormons and polygamist Muslims are outwardly viewed as the most extreme departures from the traditional idea of the American family, nontraditional families are still to be found in America.5 Explorations into the lives of American families reveal that many Americans participate in multi-party unions either expressly or tacitly.6 In this Article, this practice is referred to as "de facto polygamy."7 Arguably, multi-party unions have existed in the United States for some time.8 These unions are often only exposed, for example, when a spouse discovers that his or her life partner has been carrying out an extra-marital affair with someone else for many years or when a married father reveals the existence of extra-marital children, another household he supports, or a common law marriage with another spouse.9While polygamy is illegal in the United States,10 forms of it are still practiced either overtly, pursuant to religious traditions,11 or covertly, by the maintenance of two or more family units.12 Historically, the prosecution of polygamists has been rare in the United States, and a growing tolerance has been shown towards them.13 Still, no form of polygamy is recognized in the United States.The practice of de facto polygamy exists outside of the law. Some of those forms include multi-party common law marriages and marriages coupled with extramarital common law unions.14 It has been estimated that as many as 60,000 individuals practice polygamy in the United States.15 This number, however, does not include individuals' secret or underground participation in multi-party unions. As a result, any claims, disputes, or abuses that arise in the context of de facto polygamous unions remain irremediable. For example, when the de facto polygamist unions terminate either by death or separation, individuals who are parties to such unions are not able to benefit from the same legal protections as those provided to "de jure spouses" under inheritance or divorce laws of our jurisprudence.My focus, in this Article, is not to advocate that polygamy should be legally recognized. Nor is it my purpose to debate the viability or morality of polygamy. Instead, I am concerned with affording legal remedies for vulnerable individuals living and operating in de facto polygamous unions. In light ofthe thousands of individuals living in some form of multi-party unions, I propose that it is imperative16 to construct adequate legal options and remedies for the parties involved in these unions. …

The Failure of Economic Interpretations ofthe Law of Contract Damages

Abstract: I. IntroductionThe law of contracts is a complex but remarkably stable field. To be sure, new factual situations provide novel challenges for old doctrines, and the interstitial development of the law continues.1 Still, there is widespread agreement about the doctrinal shape of modern contract law.2 What we lack is a widely accepted interpretation of that law. We have historical narratives of how the law developed and innumerable suggestions for how it should be reformed.3 What this work does not offer is an interpretation of current contract law as embodying a coherent set of normative choices. Indeed, much of the scholarly discussion of contract law implicitly or explicitly assumes that any such interpretation is impossible and that the law we have represents, at best, a collection of essentially random and disconnected choices resulting from a series of historical accidents.4 One of the central questions facing students of contract law is whether this theoretically pessimistic view of the law is correct, or whether it is possible to understand it as a coherent normative system.One of the most promising contenders for the role of a unified theory of contract law is economics. On this view, contract law as we have it represents a choice to promote efficiency, and the particular rules we find in contract doctrine are best seen as creating economically optimal incentives for contracting parties.6 The dominant alternative is that contract law is about advancing the liberal ideal of personal autonomy by giving legal effect to the private decisions of contracting parties.7 The apparent success of economics as a methodology comes from the fact that, unlike autonomy, it seems to provide concepts that generate conclusions that are fine-grained enough to account for contract law doctrine.8 The duty to keep one's promises may be a normatively attractive ideal, but it lacks the conceptual power to specify most of the rules of contract law.9Notwithstanding this sunny assessment of economic theories of contract, criticism remains very much alive. Partisans of autonomy theories have stubbornly insisted that efficiency is such a morally bankrupt ideal that economic theories of contract must be rejected, while others have attacked efficiency theories on economic grounds.10 Navigating a route through these competing claims is one of the central tasks for the philosophy of contract law. Some have suggested that rather than seeking a jurisprudential silver bullet that will allow us to reject either autonomy or efficiency once and for all, philosophers of contract law should turn their energies to a theory that provides a principled accommodation of both approaches in a single vision of contract law.11 This Article is part of that project. It has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, and the nature of that failure places limits on the role of economics in an integrated theory of contract law.Economic theories of contract law are offered as-among other things-an explanation of contract doctrine as we have it.12 They purport to show to us the underlying normative logic of the law. When it comes to contract damages, however, the economic explanation ultimately falls short of success because it cannot account for the bilateralism of contractual liability, which then renders the dominant economic interpretation of damages fundamentally contradictory. Generally speaking, the remedy in contract law involves a transfer from a breaching party to an aggrieved party. The sum paid by the wayward promisor is exactly equal to the sum paid to the disappointed promisee.13 For example, if Jack enters into a contract to fetch water for Jill in return for a fee and Jack then fails to deliver the water as promised, the law of contracts allows Jill to sue Jack for the value of his failed performance. If Jill is successful, the law will require Jack to deliver Jill money. The sum that he pays and she receives will be identical. …

Financial Accounting and Corporate Behavior

Abstract: I. IntroductionFinancial accounting standards, choices, and results are vitally important to the managers of U.S. public companies. Nonetheless, the courts, policy makers, and legal scholars focusing on corporate law generally ignore accounting whenever they are able-treating the subject as a black box best left to accounting professionals-without recognizing the impact of accounting on managerial decisionmaking and corporate behavior. This is unfortunate. Corporate financial accounting is too important to be left (solely) to the accountants. Courts and policy makers need to understand whether accounting standards and accounting decisions matter, and if so, how; whether managerial sensitivity to reported earnings reflects legitimate shareholder concerns, irrational behavior, or rational, but self-serving behavior; and whether accounting standards can serve a useful policy role in helping to shape managerial and corporate behavior. Consider the following examples.In a case described in many corporate law texts and treatises, Kamin v. American Express Co.,1 the company's directors voted to distribute to shareholders some depreciated securities rather than selling the securities and enjoying the benefit of a corporate tax loss. The plaintiffs' allegation, accepted by the court in considering the defendants' summary judgment motion, was that the directors had made a conscious decision to forgo about $8 million in tax savings in order to avoid a $26 million reduction in reported earnings, even though the $26 million loss had been suffered economically and would be clearly reflected on the company's balance sheet.2 Because the American Express shareholders would be unable to use the tax loss, the primary beneficiary of this decision appeared to be the U.S. Treasury. The directors justified sacrificing after-tax cash flow for higher reported earnings, arguing that a $26 million "reduction of net income would have a serious effect on the market value of the publicly traded American Express stock."3The court held that the board's good faith decision was protected by the business judgment rule and dismissed the case.4 The court downplayed the plaintiffs' allegation that some of the directors were company managers whose compensation was based in part on reported earnings.5 Was the earnings/cash flow tradeoff in the Kamin case negligent? Was it even rational? Should the court have been more skeptical that the decision was in good faith and not self-serving behavior on the part of the inside directors?Consider next the battle that has been waged during the last decade over the accounting treatment of compensatory stock options. The Financial Accounting Standards Board (FASB), the private body empowered by the Securities and Exchange Commission (SEC) to set accounting standards, formally proposed in 1993 that stock option expense be recorded and subtracted from reported earnings similar to all other compensation expense.6 The corporate lobby managed to defer mandatory expensing for twelve years until the FASB finally forced through a rule in 2004.7The effect of mandatory option expensing will be to reduce reported earnings for companies that use options. Corporate interests opposing the new standard have argued that expensing will reduce share values and drastically reduce or preclude the use of options as a compensation device.8 Some economists argue that the accounting treatment is irrelevant and that managerial resistance was irrational under traditional economic ways of thinking.9 Members of Congress weighed in on this one, but on both sides of the question.10 Was managerial resistance to option expensing irrational or selfserving, or did it reflect legitimate concerns about the effect of expensing options on share value?Next, increased consistency between financial and tax accounting has been proposed as a response both to tax sheltering and artificial earnings inflation.11 Differences between financial (or book) accounting and tax accounting allow firms to exploit tax shelters that decrease taxable income without affecting book income and artificially inflate reported earnings without incurring higher corporate taxes. …

The Overlooked Costs of Religious Deference

Abstract: Table of ContentsI. Introduction 1364II. Proposals for Religious Deference 1366III. Family Violence in Religious Communities 1369A. The Influence of Religious Participation 1370B. Tolerance by Religious Communities of Family Violence 1373IV. The Practical Effects of Religious Deference 1377V. A Cautionary Tale of Deference 1382VI. Conclusion 1383I. IntroductionIn March of 2007, Der Spiegel reported that a German divorce court judge denied a fast-track divorce based on hardship to a German citizen of Moroccan origin who had been the victim of domestic violence and death threats from her spurned husband.1 In rejecting the application, the judge relied on a passage in the Qur'an that she read as permitting a man to castigate his wife.2 The judge explained that the husband's exercise of his "right to castigate does not fulfill the hardship criteria," one of the grounds for an expedited divorce in Germany.3 A firestorm of controversy erupted in response to the ruling.4 Feminists read it as giving the husband the right to beat his wife.5 Muslim scholars disputed whether the Qur'an authorized physical violence against a spouse.6When challenged on the ruling and asked to recuse herself, the judge again cited the Qur'an-this time citing a passage that savs that a man's honor is injured when his wife acts in an unchaste manner.7 Legislators across the spectrum then weighed in.8 One called the ruling "an extreme violation of the rule of law," while another labeled it a "sad example of how the conception of law from another legal and cultural environment is taken as the basis of our own notion of law."9As this case unfolds, a vibrant movement is taking hold-both in the United States and outside it-to give greater deference to religious understandings of family relations.10 In the last year, numerous academics in the United States have proposed various schemes for sharing state control over domestic disputes with religious groups.11 This Article argues that the effect of these proposals would be to pull the state out of marriage. While the proposals focus largely on the theoretical desirability of pluralistic understandings of marriage, they overlook pragmatic concerns that arise: What happens to women and children in a system of religious deference?This Article maintains that the state has an important protective function to play for traditionally vulnerable groups, a function that should not be lightly set aside. Binding women who want to exit a marriage to a religious community's norms-whether by enforcing religious contracts or ceding jurisdiction over marriage to religious authorities-will raise the costs of exiting, undermine a woman's ability to exit, and prevent her from privately regulating the conduct in her own relationship and with respect to her children.Part II surveys three proposals that would give greater deference to religious understandings of marriage and family relations, ranging from proposals to share jurisdiction over family disputes with religious bodies to enforcing religious understandings like any other prenuptial agreement. Part III then marshals empirical evidence showing that domestic violence occurs in religious communities, like it does in other parts of society. This Part shows not only that violence will occur, but that religious leaders and community members frequently tolerate "wife-abuse" and other forms of domestic violence.12 This tolerance stems in part from the belief that "the marriage [must] be maintained"13 at all costs. …

The Constitution in a Postmodern Age

Abstract: Table of ContentsI. Introduction 166II. Postmodernism and Modernism 166A. Truth and Morality: From the Universal to the Unique........171B. The Paradox of Individualism: The Social Construction of Narcissism 174III. Postmodern Influences in Constitutional Law 182A. Lawrence v. Texas and the Illegitimacy of Morality 184B. The Incoherence of Tiered Scrutiny 192C. Gonzales v. Raich and the Commodification of Everything 205D. Totaling Up the Circumstances 21OE. The Religion Clauses: Embracing Legislative Primacy Anew 212F. The Tug of Opposites: Autonomous Self v. Socially-Constructed Self 218IV. The Consequences of Postmodern Constitutional Adjudication 226A. "Just the Facts, Ma'am" 226B. Legislators in Robes 227C. All Politics, All the Time 229V. Conclusion 230I. IntroductionIn the postmodern world nothing can be known for certain, including that assertion. Although postmodernism is hardly universally accepted, its influence upon popular culture is considerable and growing. There is no reason to think that the American judiciary, or the Justices of the United States Supreme Court in particular, are exempt from the effects of the postmodernist thought that has seeped into our cultural understandings. My aim in this Article is to examine selected aspects of constitutional law in this first decade of the twenty-first century in order to appraise the extent to which postmodern insights are affecting its development. To do so, I will first define and describe postmodernism and indicate the particular aspects of postmodernist thought that are most germane to constitutional law. In succeeding sections, I will examine selected areas in which I believe that postmodernist thought has had a distinct effect on the development of contemporary constitutional law and offer some general conclusions about the likely shape of future constitutional doctrine in an increasingly postmodern age.This is a broad topic; hence, a few disclaimers and caveats are in order. I do not contend that we are all postmodernists; indeed, there is ready evidence to suggest that a great many people are antagonistic to postmodernism. Indeed, a great deal of what is often labeled the "culture wars" is a divide between postmodern, modern, and pre-modern sensibilities. Thus, I contend only that postmodern thought has had profound influence on our culture's world view. I do not contend that constitutional law is in the thrall of postmodernism; I do contend that postmodernism has had a significant, if unacknowledged and sporadic, impact on constitutional law. Although the divide between postmodern skepticism about certainty and those who cling to the promise of certainty-whether they be Enlightenment rationalists, pre-modern fundamentalists, or optimistic modernists-can mimic ancient debates of constitutional interpretation, I do not wish to revisit old battlefields. Rather, I aim to identify some of the present effects of postmodern thought on constitutional doctrine and to hazard some views on the likely future effects on constitutional law of a growing postmodern consciousness. …

Tackling the Perplexing Sound of StatutorySilence: Why Courts Should Imply aPrivate Right of Action UnderSection 10(a) of RESPA

Abstract: And in the naked light I saw, ten thousand people, maybe more, people talking without speaking, people hearing without listening, people writing songs that voices never share, and no one dared disturb the sound of silence.1I. Introduction"Homeownership is the American dream. It is the opportunity for all Americans to put down roots and start creating equity for themselves and their families."2 To realize this dream, most Americans go through the sometimes gut-wrenching experience of signing their lives away in exchange for a mortgage loan. They contract with mortgage lenders to pay back a huge amount of principal plus hundreds of thousands of dollars in interest typically over ten, fifteen, twenty, or thirty years.3 Unfortunately, predatory mortgage lenders often make financing a home even more expensive by employing unscrupulous tactics4 in order to profit at their borrowers' expense.5In one such case of predatory lending, a mortgage borrower's lender6 notified him, without explanation, that the amount of money he had to send on top of his monthly mortgage payment to cover property taxes and home owner's insurance was increasing by over $60 per month.7 It turns out that his lender had been "overcharging his escrow account8 building up a fat cushion of [his and other] borrowers' money, and investing the 'float' to [make] some profit"9 In another case nearby, a similarly situated borrower had to fight with his bank for the same reason.10 His escrow account was supposed to dip to a little over $1,300 each year, but his lender never let it drop below $2,600.11 Although tins borrower did care about the money, he fought mostly as "a matter of principle."12 Elsewhere, another borrower assumed that his lender would reimburse him at the end of the year for paying an overage of $800 into his escrow account.13 To his surprise, his lender instead required him "to pump" another $900 into his escrow account.14 Baffled, he phoned his lender for an explanation.15 When this borrower continued to "balk[] at paying the surcharge," his lender threatened him with foreclosure.16The lenders in each of these factual scenarios allegedly violated section 10(a)17 of the Real Estate Settlement Procedures Act (RESPA)18 by overcharging their borrowers' escrow accounts to cover taxes and insurance. Lenders that violate section 10(a) often take advantage of this illegal escrow "cushion" by using it for their own investment purposes.19 One might assume, and justifiably so, that victims such as those in me three examples above could sue for damages. RESPA, however, says nothing about enforcement of Section 10(a),20 and most federal courts refuse to imply a private right of action under this provision.21Courts that refuse to find an implied private right of action under section 10(a) typically do so because Congress has not expressly created one.22 This common conclusion is suspect because Congress designed RESPA to protect mortgage consumers and stifle predatory mortgage lending.23 Without a private right of action under section 10(a), this provision fails to protect borrowers and, in fact, invites lenders to employ predatory lending practices by allowing them to continue to overcharge their borrowers' escrow accounts.This Note attempts to refute the prevailing argument that no private right of action exists under section 10(a) of RESPA by "disturbing] me sound of silence"24 and asserting that Congress intended to create an implied private right of action for violations of section 10(a). Part h introduces RESPA generally, introduces section 10(a) of RESPA in particular, and establishes that violations of section 10(a) thwart RESPA's purposes and contribute greatly to the problem of predatory lending.25 Part III lays the groundwork for determining whether courts should imply a private right of action under Section 10(a).26 It details general approaches to statutory construction, delves into Supreme Court jurisprudence regarding implied private rights of action, and emphasizes that courts have an obligation to save and not to destroy statutory text27 Part IV analyzes and critiques cases that have decided the issue of whether a private right of action exists under section 10 generally. …

The Future of Palestinian Women’s Rights: Lessons from a Half Century of Tunisian Progress

Abstract: Table of ContentsI. Introduction 1551II. The Palestinian Legal System 1553III. The Tunisian Legal System 1556A. Tunisia Overview 1556B. Suggestions for Palestine 1560IV. Conclusion 1567I. IntroductionAs this piece goes to print, the Gaza Strip and West Bank Palestinian Territories are currently under the authority of two different Palestinian governments. Gaza is under the control of the Islamist group Hamas, i.e. Harakat al-Muqawama al-Islamiya (Islamic Resistance Movement),1 which unexpectedly won the majority of seats for the Palestinian Legislative Council (PLC) in January 2006.2 The West Bank is under the jurisdiction of Palestinian Authority (PA) President Mahmoud Abbas, head of the mainstream Fatah party, who has appointed an alternative cabinet and receives support from the international community.3 Palestinian internecine political conflict and ongoing problems in the peace process with Israel prevent any focus by either Hamas or Fatah on the internal legal regime.4 At some point the situation may stabilize, and Palestine may be able to consider extensive legal reform. One area ripe for consideration is women's rights. As we have discussed in a prior article on Palestinian constitutionalism,5 if the government is Islamist in nature, women's rights are likely to become more based on traditionalist Islamic Shari'a principles.This Article speculates on the future of Palestinian women's rights if the government in Palestine one day decides to take a more secular direction. If that possibility comes to fruition, we recommend that Palestinians explore the approach adopted by another Muslim country, Tunisia. Why Tunisia? Along with Turkey, Tunisia has taken the most secularized approach to women's rights in majority-Muslim countries.6 Additionally, many Palestinians are somewhat familiar with the Tunisian experience since the Palestinian Liberation Organization (PLO) was based there from 1982 to 1994, just prior to moving to the West Bank and Gaza to start the PA.7 Moreover, Palestinians have also been considered one of the more secular groups in the Middle East, and might be amenable to secular approaches in the future.8 Dean Adrien Katherine Wing visited Tunisia several times to explore the implementation of women's rights over the fifty-year period since its independence.9Part II of this Article will provide some background on the Palestinian legal system with respect to women's rights.10 Subpart III.A will first provide an overview of the Tunisian legal system with respect to women's rights. Subpart III.B will then compare the Tunisian legal system on selected women's rights issues to the Palestinian system with suggestions to future Palestinian policymakers, including legislators and women's rights advocates.II. The Palestinian Legal SystemLike many societies, Palestine has customary practices and religious law which endorse disparate treatment on the basis of gender.11 Customary law may be followed across class and geographic lines, and affects women in several areas.12 For example, in family law, women are clearly subordinate to male heads of households.13 In the educational sphere, sisters are less likely to get as much education as their brothers.14 Conceptions of family honor endorse honor killings in some circles, i.e. the murder of women who shame the family in perceived interactions with unrelated men.15 Domestic violence may not violate criminal law because it can be considered part of male prerogatives for control of female behavior.16The Islamic Shari'a law that applies to 90% of Palestinians17 has certain benefits to women over customary practices. …

Marital Property in California and Indonesia:Community Property and Harta Bersama

Abstract: Table of ContentsI. Introduction 1418II. California Community Property 1422III. Harta Bersama in Indonesia 1437A. Adatrecht: Custom as Law 1444B. The Islamic Concept of Marital Property 1448IV. Conclusion 1459I. IntroductionOne of the more notable features of Indonesian Islamic law is its recognition of the concept of jointly owned marital property. The development of the doctrine of Islamic marital property dates from at least the eighteenth century, and Indonesian Islamic tribunals have applied a doctrine of joint marital property for more than 100 years.] The doctrine is currently spelled out in both the National Marriage Law,2 which is applicable to Indonesians of all religions, and in the Compilation of Islamic Law3 (Compilation), a code of family, inheritance, and charitable foundation rules that has been formally designated as binding on the Islamic courts. The Compilation provides that marital property, referred to with both the Indonesian term "harta bersama" and the Arabic derived words "syirkah" or "syarikat," is all property that is acquired during the marriage either by the husband and wife individually, or through their joint efforts, regardless of who holds title to the property.4The doctrine of joint marital property as applied by Indonesian Islamic courts bears a striking similarity to community property laws that exist in California, Texas, and a small number of other U.S. jurisdictions.5 The basic features of U.S. community property and Indonesian Islamic marital property are identical. In both systems the marital estate consists of property acquired during the marriage through the efforts of either of the spouses.6 Both systems distinguish marital property from separate property belonging to the individual husband or wife, and both define separate property in the same way: Separate property consists of property owned by either spouse prior to the marriage or acquired during the marriage by either gift or inheritance.7The similarity between harta bersama and community property is entirely fortuitous. Property rights within marriage are not treated in standard works of Islamic jurisprudence, and the doctrine of joint marital property is not known in Islamic law outside of Southeast Asia.8 The Indonesian Islamic doctrine of joint marital property is derived from Southeast Asian custom or adat and was absorbed into Islam by analogy to Islamic principles of business partnership.9 The doctrine of community property as practiced in the United States has its source in continental European civil law.10 Louisiana, which follows the French civil law tradition, applied a community property doctrine from the eighteenth century and preserved it in the civil code it adopted in 1808.11 The other community property jurisdictions are all in the western United States, and they trace their marital property systems back to Spain.12Apart from their doctrinal similarity, Indonesian Islamic marital property and California community property are alike in another respect: Both are transplanted elements existing in foreign legal environments.13 Harta bersama is an indigenous Southeast Asian practice in an Islamic conceptual structure, while community property is a continental civil law institution in an AngloAmerican common law system.14 In both cases, moreover, the conception of marriage that underlies the doctrine of joint marital property is out of harmony with the understanding of marriage reflected in other aspects of the legal systems that have incorporated the doctrine.15 The recognition of joint marital property in both Indonesia and the United States is commonly associated with an understanding of marriage as a partnership between the spouses. …

Running on Empty: Will Exxon Mobil Causea Breakdown for Chevron and theAdministrative State?

Abstract: I. IntroductionChevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. is the most cited decision in all of administrative law.2 The significance of Chevron jurisprudence to modern administrative law cannot be overstated: The doctrine shapes the federal courts' approach to practically all statutory interpretation questions when assessing administrative action.3 Since the Supreme Court handed down this landmark decision, however, the Court's philosophical approach to statutory interpretation has undergone a dramatic transformation into hypertextualism.4 Hypertextualism occurs whenever a court relies on a technical construction of a phrase or word, even when it appears that such a construction contradicts congressional intent. This shift to hypertextualism could have unintended effects on Chevron jurisprudence. The connecting factor is ambiguity. Hypertextualism discourages judges from finding ambiguity except in the most extreme situations,5 while Chevron deference depends on a broader concept of ambiguity.6 The two approaches therefore are incompatible. Further, hypertextualism threatens the efficiency of administrative agencies, undermines agencies' autonomous decisionmaking and thwarts textualist objectives.7This Note presents the Supreme Court's recent decision in Exxon Mobil Corp. v. Allapattah Services., Inc.* as a decision that solidified the Court's adoption of a hypertextualist approach to statutory interpretation. The debate over the textualist approach versus the pragmatic approach is a constant in the field of statutory interpretation.9 Much of the scholarly debate about statutory interpretation centers on the use of legislative history as a tool of statutory interpretation10-simply stated, in the face of an ambiguous statute, textualists forbid its use and intentionalists encourage it." Ambiguity-specifically, its absence-is therefore an issue of critical importance for the textualist approach. But, ambiguity is a core concept for the Chevron doctrine: The central question in Chevron's "step one" is whether the statute is ambiguous.12 Without ambiguity, a court will never advance to step two of Chevron and recognize the agency interpretation as controlling.13 Ambiguity liberates the agency.To illustrate the unintended consequences hypertextualism may have on the modern administrative state, consider a paraphrased version of a hypothetical posed by Professor Richard Pierce. Congress charges an agency with implementing a statute that has three provisions, A, B, and C, each of which can support two meanings, 1 and 2.14 The agency interprets the provisions to mean Al, Bl, and Cl, because it perceives programmatic advantages to that particular construction.15 Decades later, a court reviews the agency's interpretation under Chevron, and finds the "plain meaning" of the statute to be A2, Bl, and Cl, thus disregarding the agency's Al interpretation.16 Later, a different circuit court finds the "plain meaning" in fact to be A2, B2, and Cl.17 Consequently, the agency will be forced to implement its statutory mission in two different ways in two circuits.18 If the Supreme Court then determines that the "plain meaning" is in fact Al, B2, and Cl, the agency may not be able to perform its mission at all.19One may not find statutory interpretation trends or the continued vitality of administrative law doctrines to be of pressing concern. Consider, however, a more tangible example. Many rights granted to citizens by Congress hinge upon the chosen construction of a particular statute or a definition of a key term. For instance, are you a lawyer, faculty member, librarian, engineer, or architect? Then the collective bargaining and organizational rights of your profession and many others depend upon the appropriate construction of the National Labor Relations Act (NLRA). Congress enacted the NLRA to provide employees with legal protection to freely associate, organize, and bargain collectively to negotiate terms and conditions of employment. …

The Genuine Article: A Subversive Economic Perspective on the Law's Procreationist Vision of Marriage

Abstract: I. IntroductionFrom the metaphor of the closet1 to that of the three dollar bill, tropes2 of fraud, deception, and mimicry seem to trip off the tongue when the subject of a queer sexual orientation arises.3 Over the last decade, and particularly within the last three years, marriage traditionalists have increasingly relied on a particular rhetoric of deception-counterfeiting-to convey what in their view is a species of public fraud: same-sex marriage and its close approximations, civil unions and domestic partnerships. Indeed, counterfeiting rhetoric has become so common in the legal controversy over same-sex marriage that its sheer pervasiveness nearly renders it invisible.In May 2003, Marilyn Musgrave, United States Representative and cosponsor of the original Federal Marriage Amendment (FMA), publicly declared that a federal marriage amendment was necessary because "[t]he traditional values Americans hold are being traded in for counterfeit marital unions."4 Representative Musgrave was not the first person involved in the same-sex marriage debate to coin the analogy between same-sex marriage and counterfeiting. Rather, its vintage in that debate may be traced at least as far back as the mid-90s. In 1995, Robert Knight, Director of the Concerned Women of America's Culture and Family Institute, deployed the counterfeiting trope to describe same-sex marriage;5 one year later, Gary Bauer, former President of the Family Research Council, testified that same-sex marriage is "a counterfeit that will do great harm to the special status that the genuine institution [of marriage] has earned."6 Nor is Representative Musgrave the last to link subversive numismatic practices with non-normative sexual and affective relationships. More recently, counterfeiting has become a routine way to describe same-sex marriage and its imitative approximations, civil unions and domestic partnerships, as well as the so-called artificial reproduction that occurs in the context of a same-sex relationship.7Where does this counterfeiting language come from and what does it signify? More importantly, what work is it doing in the legal controversy over the extension of marital rights to same-sex couples? On one level, to compare same-sex marriage to a counterfeit makes sense in light of the fact that sexual minorities and counterfeit articles share a common language. The federal criminal statute that targets counterfeiting, 18 U.S.C. § 472, imposes penalties on those who either "pass," or attempt to "pass," counterfeit currency in the United States.8 With respect to sexual minorities, Professor Kenji Yoshino has amply documented just how pervasive the language and ideology of passing is for gays and lesbians.9 This Article will return to this idea that same-sex couples are like counterfeit currency because artificial reproductive technology is increasingly allowing them to pass for straight-part of the reason, this Article submits, why procreation has suddenly become the dominant rationale in same-sex marriage litigation today.At the same time, to compare same-sex marriage to a counterfeit makes about as much sense as does the claim that same-sex marriage will lead us ineluctably down the slippery slope to incest. In a prior article, this author argued that the slippery slope trope, "from same-sex marriage to incest," does not hold up because incest is definitionally imprecise-just where is it that we are slipping to when we slip into incest?10-and because in many ways we have already slipped. ' ' Here, the author turns instead to the counterfeiting trope that legal actors, among others, have recently deployed to describe the public fraud that, in their view, same-sex marriage represents. The counterfeiting analogy to same-sex marriage warrants close attention for two reasons. First, and more narrowly, the counterfeiting analogy does not hold up because, quite simply, same-sex marriage is not fooling the public and same-sex couples are not, at least technically, passing for straight when they marry each other. …

Imminently Eminent: A Game TheoreticAnalysis of Takings Since Kelo v. City ofNew London

Abstract: Table of ContentsI. Introduction 1620II. Kelo v. City of New London and Eminent Domain 1624A. Eminent Domain Jurisprudence and What Kelo Changed 1625B. Reactions to Kelo 16321. Restrictions Based on Purpose 16332. Procedural and Compensation Requirements 1635III. A Game Theoretic Model of Eminent Domain 1638A. The Hold Out Problem: Bargaining with a Low Valuation Owner 1640B. Adding the Power of Eminent Domain to Solve the Hold Out Problem 1643C. Adding Uncertainty of Success to the Model 1646IV. Analysis of the Post-Kelo Proposals 1647A. Restrictions Based on Purpose 16471. Narrow Interpretation with a Low Valuation Owner 16472. Narrow Interpretation with a High Valuation Owner 1649B. Compensation Above Market Value 16491. Compensation Above Market Value with a Low Valuation Owner 16502. Compensation Above Market Value with a High Valuation Owner 1651V. Conclusion 1652VI. Mathematical Appendix 1654I. IntroductionOn June 23, 2005, the United States Supreme Court decided Kelo v. City of New London1 and reignited the debate over the proper role of property rights and the power of eminent domain. There was considerable backlash. According to Congressman Phil Gingrey, the majority decision in KeIo "placed a for-sale sign on the doorstep of every American home or business;"2 Justice O'Connor, in her dissent to Kelo, noted that the majority decision "effectively [deleted] the words 'for public use' from the Takings Clause of the Fifth Amendment."3 The decision, however, practically invited legislative reexamination of eminent domain,4 which has been followed by a scholastic reconsideration of how much the government should be able to interfere in economic matters.5 The scholastic debate Kelo sparked was as heated as the one between the majority and the dissent.6 Even before Kelo, there were some clearly drawn sides in the public use debate; in broadest terms, the eminent domain debate comes down to a balance between efficiency and equity.7Those on the side of efficiency typically point to the impossibility of efficiently purchasing large parcels of land on the open market.8 Because land is unique, property owners have a monopoly and can, absent the power of eminent domain, extract monopoly prices for their land.9 Typical market negotiations would result in very high transaction costs, making whatever project a buyer intends cost prohibitive.10 Market imperfections allow at least one party to extract rents from the other and to reduce ultimate social welfare.11 For this reason, the efficiency camp argues that the government should maximize welfare by using eminent domain to channel the property into its best use.12 Judge Posner provided a very qualified defense of the KeIo decision, but expressed frustration that the Court did not consider the hold out problem.13The equity side of the debate, which is generally the larger camp, tends to center around the argument that a liberal use of eminent domain will allow a government or those acting with the power of government to unjustly acquire property. …

The Primary Jurisdiction Doctrine:Competing Standards ofAppellate Review

Abstract: I. IntroductionWithin constitutional limits, Congress may create administrative agencies with adjudicatory power.1 Congress may also define the jurisdiction of Article III courts.2 As a result, Congress has the greatest control over the balance of power between courts and agencies. It can provide exclusive jurisdiction over a matter to one tribunal, or provide concurrent jurisdiction to both. Neither courts nor agencies can disregard these statutory boundaries.3 In reality, however, the balance of power is more complicated. Courts and agencies may willingly relinquish adjudicatory power that is rightfully theirs in favor of the other.4When a court wishes to defer to the adjudicatory authority of an agency, there are a number of legal means available, including finality, ripeness, and exhaustion. A related but less popular means of deference is the primary jurisdiction doctrine. Because it is applied infrequently, the shape of this doctrine is not fully defined. The circuit courts employ differing conceptions of primary jurisdiction,5 utilize different factors in their analysis,6 and apply different standards of review.7Standard of review disputes, unfortunately, are particularly difficult to resolve. Without a statutory mandate, or a clear history of appellate practice, there is little to turn to for guidance.8 Judges are often of little help, expressing the standard of review in a few words before addressing the merits. For the attorney contemplating an appeal, however, knowing the applicable standard is crucial.9 First, the standard of review affects the decision whether to appeal because the likelihood of success is a function of "the nature of the error claimed and the standard under which it is reviewed."10 second, the review standard focuses and organizes arguments, and it provides "a shared language of appellate scope.""The standard of review for primary jurisdiction in particular presents a valuable opportunity for litigants. A few circuits have yet to address the problem,12 while others have explicitly left the issue to be decided another day.13 In these circuits there is law to be made, and litigants may persuade the court to adopt a standard advantageous to their position.This Note addresses the issue of the proper standard of appellate review for primary jurisdiction decisions and concludes that they should be reviewed only for an abuse of discretion.14 In reaching this conclusion, Part II begins with a summary of the primary jurisdiction doctrine, including the development and application of the doctrine, as well as a breakdown of the current circuit split. Part III examines the two applicable review standards, namely, de novo and abuse of discretion. Part IV then analyzes the application of the doctrine and determines that primary jurisdiction decisions are best characterized as discretionary, as opposed to factual or legal. Lastly, Part V discusses analogous doctrines, which reinforce the validity of the abuse of discretion standard.II. The Primary Jurisdiction DoctrineIn appropriate circumstances, the primary jurisdiction doctrine provides trial courts a useful tool for advancing certain policy objectives by deferring to the decisionmaking power of administrative tribunals.15 Specifically, it aims to promote better informed legal decisions by proper utilization of administrative expertise, and it seeks to maintain uniform treatment of a regulatory scheme by leaving critical decisions to the appropriate agency.16 When these objectives will be furthered by its application, the doctrine allows a court to refer issues to an agency that, because of a congressional delegation of power, has special knowledge and discretion over the subject matter.17The doctrine arises from a series of Supreme Court cases addressing the Interstate Commerce Commission (ICC) and its regulation of common carriers.18 In these cases, the Court invoked the primary jurisdiction of the ICC in order to give effect to the congressional intent of the Commerce Act. …

Reconciling Ring v. Arizona with the CurrentStructure of the Federal Capital Murder Trial:The Case for Trifurcation

Abstract: Table of ContentsI. Introduction 350II. Current Structure of a Federal Capital Trial 352A. Phase One: The Guilt Phase 352B. Phase Two: The Sentencing Phase 3531. Is the Defendant Eligible for the Death Penalty? 3532. Is Death the Appropriate Punishment? 3543. Jury Deliberations 356III. Recent Supreme Court Opinions and the Adequacy of the Bifurcated Structure 358IV. The Problem 361V. A Solution: Trifurcation 363VI. Arguments for Trifurcating the Federal Capital Trial 364VII. The Rule Against Character Evidence is a Constitutional Right Under the Due Process Clause of the Fifth Amendment..... 365A. Overview 365B. What is Character Evidence? 366C. Character Evidence and the Sentencing Phase of a Federal Capital Trial 367D. Locating a Right Prohibiting the Use of Character Evidence in the Due Process Clause of the Fifth Amendment 3681. The Prohibition of Character Evidence Enjoys a Long Common Law History 3692. Supreme Court Practice Recognizes the Importance of Preventing the Introduction of Character Evidence ....3713. Every Jurisdiction Has Enacted Evidentiary Rules Prohibiting the Use of Character Evidence 3 734. Exceptions to the Rule: Federal Rules of Evidence 413 and 414 374E. Implications for the Federal Capital Trial 376VIII. The Unique Instance Arising After the Supreme Court's Opinion in Crawfordv. Washington 377A. Overview 377B. Federal Capital Trials Post-Crawford 378C. Crawford's Impact on Trifurcation 379IX. Statutory Construction of the FDPA Compels Tri furcation 379A. United States v. Johnson 381B. The Implications of Statutory Construction for Trifurcation 384X. Trifurcation Ameliorates Problems Associated with Capital Jury Decision Making 385A. Empirical Research: The Capital Jury Project 385B. Empirical Research: State Capital cases 386XI. Conclusion 388I. IntroductionThe grieving wife attempts in vain to muffle her sobs as she recounts her final minutes with her late husband.' The long pauses between her statements create a screaming silence. Members of the gallery nervously look to the floor, trying not to make eye contact with the wife for fear that they, too, will erupt into tears. Next, the prosecution calls the victim's son to the witness stand. Stories of childhood memories follow, and a wave of sadness washes over the jury. Most of the jurors intermittently blot tears. …

[Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing

Abstract: I. For Those About To Rock (I Salute You)1The fun is just about to get started,So throw the switchIt's rock 'n' roll time.(Hey!)-Guided By Voices, Over the Neptune/Mesh Gear Fox2Popular music is a popular topic in legal writing. Legal writers need little excuse to write about legal issues involving particular musical artists or genres3 when given half a chance, and the legal problems of our favorite artists and the written judicial opinions they produce are a particular source of interest for many lawyers. We may generally care little and understand even less about the vagaries of copyright law, but you tell us that John Fogerty of Credence Clearwater Revival once got sued for plagiarizing his own songs and that the case actually made it all the way to the Supreme Court,4 well, by golly, we might just read your little law review article on the subject, even though we secretly think most law review articles are deadly dull.But lawyers do more than just find excuses to write about the law and popular music. Quite often, lawyers and judges will use the words of popular music artists in an attempt to grab a reader's attention or advance the writer's thesis. Such uses could range from something as simple as using (or altering) lyrics as the title for a piece of scholarship to using descriptive passages from songs to help create a link between the song and the legal issue at hand.It is unclear how many artists would feel upon learning that judges and academics sometimes use their lyrics in order to persuade other elites as to the correctness of their thinking on a legal issue. Popular music artists have always been somewhat ambivalent about having the lyrics to their songs viewed as poetry, tools for social change, or as anything other than a means of self expression.5 There are still quarters within academia that posit that at least some popular music lyrics, and rock lyrics in particular, qualify as poetry,6 evidence in Jim Morrison's "poetry" to the contrary notwithstanding.7 Folk music has long been viewed by the ideological left as a means of effectuating change,8 and some genres of rap contain "the most overt social agenda in popular music since the urban folk movement of the 1960s."9 But for every artist willing to go on record as claiming poet or social commentator status, there are almost certainly more who reject such labels. Sixties folk legend Phil Ochs is on record as stating that he wrote about political and social issues "out of an inner need for expression, not to change the world."10 Bob Dylan's discomfort with being the "voice of a generation" is well-documented and ultimately was a factor in his decision to abandon his protest singer roots.1 ' For the first part of R.E.M.'s career, no one could understand what Michael Stipe was even talking about.12Nonetheless, the reliance on popular music lyrics in legal writing is natural. Popular music, in its many forms, covers the spectrum of human emotions and situations. As Johnny Cash put it on the liner notes to his Unchained album, "I love songs about horses, railroads, land, judgment day, family, hard times, whiskey, courtship, marriage, adultery, separation, murder, war, prison, rambling, damnation, home, salvation, death, pride, humor, piety, rebellion, patriotism, larceny, determination, tragedy, rowdiness, heartbreak, and love. And Mother. And God."13 With maybe one or two exceptions, the law has something to say on each of those subjects.Aside from aiding a writer in the quest to communicate about a particular issue, the use of popular music may also humanize an individual in the eyes of others. During the Samuel Alito confirmation hearings, for example, the news media enthusiastically reported that the conservative Alito was a fan of Bruce Springsteen.14 Not willing to cede his blue collar bona fides to the likes of Republican appointee Alito, Senator Richard Durbin took things a step further by using a line from an interview with Springsteen against Alito:They once asked [Springsteen],. …