Leib on Legislation in the First Year of Law School

Ethan Leib has published an article called Adding Legislation Courses to the First-Year Curriculum, 58 J. Legal Ed. 166 (2008)(available from HeinOnline), in which he argues that schools should "seriously consider designing their first-year curriculum to include a mandatory Legislation course." But even more important, he argues, is that there should be a vigorous debate about what content ought to be included in that course.

King on Regulating Preimplantation Genetic Screening

Jaime King has published an article called "Predicting Probability: Regulating the Future of Preimplantation Genetic Screening," 8 Yale J. Health Policy, Law & Ethics 101 (2008). Here is the abstract:

Government intervention into the reproductive decisions of individuals has been a significant source of tension and strife within American legal jurisprudence for the last century. This tension has caused many lawmakers in the United States to eschew attempts to regulate assisted reproductive technology, including preimplantation genetic diagnosis (PGD). PGD enables prospective parents to select embryos created through in vitro fertilization based on the presence of a genetic or chromosomal abnormality. Use of PGD has been limited due to technological constraints, expense, and moderate success rates. Recent advances in genetic testing technology will remove many of these obstacles, substantially increasing both the benefits available through PGD and its patient population. These advances will enable parents to do more than diagnose serious disorders in their potential offspring; they will be able to screen their embryos for hundreds of genetic and chromosomal characteristics at one time - preimplantation genetic screening (PGS). While these advances in reproductive genetic testing promise significant benefits, they also present risks to both individuals and society. Government intervention is warranted to ensure the quality and safety of assisted reproduction, including PGS, and to monitor its use for risks to individuals or society. The government should only intervene when the free exercise of individual reproductive autonomy threatens harm to others. This article proposes the creation of a federal regulatory body to license and monitor the practice of assisted reproduction and suggests a balancing framework for addressing conflicting interests in the use of PGS to screen for various genetic characteristics.

Here is the link to the SSRN post: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1284516

Hazard on What CAFA Says About the Relation Between Federal and State Law

Geoff Hazard has published an article titled, Has the Erie Doctrine Been Repealed By Congress?, 156 U. Pa. L. Rev. 1629 (2008). Geoff says that the Class Action Fairness Act of 2005 implies that the Erie doctrine is "seriously erroneous." Viewed in broader relief, however, "CAFA can be understood as one more of a long series of congressional enactments that provide federal civil justice to various categories of litigants," he states. "In this light CAFA is hardly revolutionary, and its enactment might invite reconsideration of various applications of [Erie]."

Marcus on the Stated Purposes of CAFA

Rick Marcus has published an article scrutinizing the stated purposes for the Class Action Fairness Act of 2005 titled, Assessing CAFA's Stated Jurisdictional Policy, 156 U. Pa. L. Rev. 1765 (2008). Rick acknowledges the unarticulated, non-neutral political motivations for expanding federal jurisdiction over class actions. But "[f]avoring use of federal procedures for class actions makes sense, as does favoring expansion of federal court jurisdiction to cure problems created by overlapping class actions," and those are CAFA's two stated rationales. Rick concludes that, despite all the incendiary rhetoric about CAFA, its enduring effect is yet to be determined.

Little on the Evidentiary Sources of Wrongful Convictions

Rory Little has posted to SSRN an article called, "Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes," which will be published in Vol. 37 of the Southwestern Law Review. Here is the abstract:

After two decades of powerful "wrongful conviction" cases stimulated by new DNA science, we can now categorize the sources of error across dozens if not hundreds of exonerations. (The author, a former prosecutor, is neither a death penalty abolitionist nor a disbeliever of convictions - many convictions are "very right indeed" (n.2). Nevertheless, at least four of the known sources of wrongful conviction fall into categories we can define and, perhaps, do something about: (1) eyewitness misidentifications, (2) false confessions, (3) "jailhouse snitches" (or more broadly, criminal informants), and (4) "junk" (i.e., unvalidated) science. Yet we do not simply ban these categories of evidence from criminal cases. Instead, we propose only procedural screens, which if successfully navigated, still allow some instances of the questioned types of evidence to be admitted. But in cases with wrenching facts, emotion may overwhelm "screens" such as jury instructions or expert testimony designed to narrow the jury's consideration of questionable evidence. In an effort to stimulate meaningful remedial thinking, this essay proposes instead a "categorical" exclusion solution for capital cases. (The essay quickly sidesteps the more difficult question: why limit the categorical exclusion to just capital cases?) No capital prosecution may be filed or prosecuted if based primarily on one of the four listed sources of evidence, whether singly or in combination. This statutory proposal would be immediately judicially enforceable and reviewable. A model statute is appended, so that critics (or advocates) can shoot at (or improve) the idea with specifics. The essay concludes by briefly considering nine objections that might be raised to the proposal. The essay points out that we do "categorically" ban probative evidence in at least two other contexts: the Treason Clause of the Constitution; and polygraph evidence. (Interestingly, Ben Franklin was reported by James Madison to favor the Treason Clause, which blocks the prosecution of treason cases unless the evidence is especially powerful, because the evidence was "too easily made use of against innocence." Thus the concern to guard against prosecution of the "actually innocent" is hardly new.) The essay also provides (in a footnote, of course) some "forgotten" history about "Actual Innocence" literature in the United States: The debate can be traced back to a 1912 dialogue between the wardens of the American Prison Congress and then-Librarian of Congress Edwin Borchard, which culminated some decades later in Borchard's well-known 1932 book "Convicting the Innocent."

Shanske on Tiebout, Politics, and Local Public Goods

Darien Shanske has posted an article to SSRN called, "The Tiebout Model and the Role of Political Choice in the Production of Local Public Goods." Here is the abstract:
This paper addresses the central normative justification for the current local government landscape. This justification is economic and consists of the argument that competition among a multitude of local government entities is efficient. This vision of jurisdictional competition is generally known as the Tiebout model of local government. Much of the debate about the Tiebout model has centered on whether it correctly describes reality (e.g., are there enough jurisdictions for meaningful competition?) and on whether it would be desirable if it did do so (e.g., jurisdictional competition by necessity creates "losing" jurisdictions - is this an acceptable way to organize our local politics?). As an initial matter, I observe in this paper that constitutional law at the federal level has played a central role in enabling Tiebout-type jurisdictional competition. The Supreme Court's most recent contribution to the Tiebout model was its decision on intra-district desegregation plans last term in Parents Involved. This decision makes it much more difficult for local governments to directly mitigate long-terms patterns of residential segregation, but for the same reason helps the Tiebout model by allowing individuals to buy into the type of neighborhood they want without fear of later meddling by local governments. Justice Kennedy's controlling concurrence in Parents Involved claims that school districts may still try to combat residential segregation through "strategic site selection of new schools." He does not explain how school districts are to do this. This paper suggests some mechanisms that might be used. This paper makes a series of contributions to the discussion of the Tiebout model. First I argue that, despite arguments by proponents of the Tiebout model to the contrary, a full-blown Tiebout model does not release governments at various levels, nor citizens, from making political choices about a just (versus merely efficient) distribution of resources. This is primarily because the legal background rules set the terms of the competition and can select for different equally efficient sets of jurisdictions (at least from a pragmatic perspective). From this result it follows that these legal background rules ought to be interrogated as making political choices. A particular type of rule is described in this paper as a "bundling rule." A bundling rule operates, for instance, by making a certain method of financing schools readily available only to new subdivisions, thus bundling new schools with new development. By opting to make such a method available, state governments are in effect choosing to encourage certain (rather dubious) patterns of development. There has not been adequate discussion of the power of bundling rules to shape the governmental and development landscape. Considering the impact of these state and local rules, diffuse and obscure as they may be, is especially important because, among other reasons, so much federal law as regards these issues has not only been settled, but settled in a way that embraces the Tiebout model.

An earlier version of this article was the basis for Darien's job talk. Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1243818

Shanske on Aristotle's Doctrine of Equity

Darien Shanske has just published an article called, "Revitalizing Aristotle's Doctrine of Equity," 4 Law, Culture & the Humanities 352 (2008). Here is the abstract:

This article argues for the contemporary relevance of Aristotle's doctrine of equity. Too often, similar arguments make this doctrine relevant by abstracting from the details of Aristotle's position or, conversely, fixating on details without due consideration of the epochal gap that separates us from Aristotle. After an initial survey of these limited approaches, the article proceeds to a more adequate account of Aristotle's doctrine of equity with the help of Heidegger. In particular, what Heidegger offers is a nuanced argument as to why Aristotle's manifest absorption in the concrete details of his face-to-face society is not a limitation to his doctrine, but a strength. We, no less than Aristotle, are enmeshed in logos, in a background ordering not at the command of our will, but we have a greater difficulty seeing this. Thus, where equity for Aristotle above all required expert engagement with logos, equity bids us first to acknowledge that the logos is.

Shockingly, this journal does NOT provide reprints and will not allow a post to SSRN for one year! But fear not, this blog is committed to providing the link to the SSRN post when it becomes available, if your Aristotle needs can wait that long!

Katyal on Property

Sonia Katyal has posted to SSRN an article (co-authored by Kristen Carpenter and Angela Riley) called "In Defense of Property." Here's the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1220665. The article has been accepted for publication in the Yale Law Journal.

Although Sonia is not on the Hastings faculty, she did substantial work on this article while a Traynor visiting professor over the summer!

Marcus on Dispersion and Consolidation of Litigation

Rick Marcus has published an article entitled, Cure-All for an Era of Dispersed Litigation? Toward a Maximalist Use of the Multidistrict Litigation Panel's Transfer Power, 82 Tulane L. Rev. 2245 (2008) (symposium on multidistrict litigation)(available from HeinOnline). Here is the abstract:

Since World War II, the American economy has coalesced so that mass production and distribution account for a much larger proportion of the goods and services Americans receive. During the same period, various legal theories -- particularly products liability and consumer rights -- have broadened the grounds on which producers of goods or services could be sued. Together, these developments have led to increasingly frequent dispersed litigation. During the same period, the Judicial Panel on Multidistrict Litigation has repeatedly used its transfer authority to combine dispersed cases raising common issues, often leading to combined resolutions or settlements of such litigation. This Article reviews the evolution and orientation of the Panel's consolidation activities against the background of modern procedure's preference for expansive combination of related claims and break from traditional procedure's "minimalist" attitude toward litigation combination. It explores the extent to which the Panel has adopted a "maximalist" attitude toward such combination and identifies some prudential concerns about pushing further toward a maximalist attitude.

Weithorn on the Problems of Applying Atkins v. Virginia

Lois Weithorn has published an article identifying some of the conceptual challenges in applying the U.S. Supreme Court's 2002 decision in Atkins v. Virginia, which held that execution of the mentally retarded violates the Cruel and Unusual Punishments clause of the Eighth Amendment. Lois concludes that "for some defendants -- particularly those viewed as 'mildly mentally retarded' -- summary scores on traditional measures of intellectual and adaptive functioning will not constitute the most meaningful and relevant evidence of intellectual disability for the purpose of death-penalty exclusion." She argues that, "given the limitations of existing measurement instruments . . . state policies should err on the side of casting a net that is too wide rather than one that is too narrow in defining 'mental retardation' for the purpose of Atkins compliance." The article is at 59 Hastings L. J. 1203 (2008) (symposium on forensic science).

Leib Guest Blogging with New York Times

Ethan Leib is guest-writing for the New York Times "Freakonomics Blog" this week. Here is the link to his first post, regarding California's use of his work on friendship and the law: http://freakonomics.blogs.nytimes.com/2008/08/11/friendship-and-the-law-a-guest-post/.

Park on Signature Identification Evidence

Roger Park has published an article called "Signature Identification in the Light of Science and Experience," 59 Hastings L. J. 1101 (symposium on scientific evidence). Roger carefully analyzes the empirical studies on signature identification and concludes that expert witnesses on forensic document examination should be permitted to testify in signature authentication cases. However, he strongly advocates numerous safeguards, including "instructions that the expertise is not scientific, restrictions on the use of scientific jargon or science-invoking words such as 'laboratory,' and full discovery of detailed conclusions." Furthermore, Roger argues that, when such forensic document experts testify, witnesses with knowledge of the scientific method should be allowed to testify on the other side, questioning scientific status, proficiency, or the validity of conclusions.

Keitner on Accomplice Liability in Alien Tort Statute Cases

Chimene Keitner has now posted to SSRN her article titled, "Conceptualizing Complicity in Alien Tort Cases," which will appear in Volume 60 of the Hastings Law Journal. Here is the abstract:
The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: How much international law? The U.S. Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for alleged complicity in international law violations by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards. This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants' conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory.

Here is the link: http://ssrn.com/abstract=1158806

Mart on the Patriot Act, Post-Reauthorization

Susan Nevelow Mart has posted an article to SSRN titled, "The Chains of the Constitution and Legal Process in the Library: A Post-Patriot Reauthorization Act Assessment." Here is the abstract:

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are such a potent symbol of democratic openness, the effect of the Patriot Act on libraries has acted in the public mind as a microcosm of the broader problems with the implementation of the Patriot Act. The publics discomfort with the civil liberties implications of the Patriot Act has turned out to be justified, as every agency that has reviewed the implementation of the Patriot Act has concluded that the government has not been able to maintain an appropriate balance between the need to protect civil liberties and the need to prevent terrorist acts. The government's list of domestic terrorist acts that have been prevented or punished is not inspiring: the entire panoply of tools authorized by the Patriot Act has not done much more than stop some home-grown right wing fringe groups and eco-terrorists. In light of the evidence of abuse of civil liberties and the questionable constitutionality of many of the Patriot Act's provisions, this paper suggests that the time for vigorous advocacy has not passed and that further legislative changes need to be made.

Here's the link: http://ssrn.com/abstract=1105448

Roht-Arriaza on Transnational Prosecutions in Guatemala

Naomi Roht-Arriaza has published an article chronicling efforts to prosecute leaders of the deposed Guatemalan regime for genocide and torture, among other things, with the help of Spanish legal process. The article is titled, "Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-Conflict Guatemala," 9 Chi. J. Int'l L. 79 (Summer 2008).

Naomi has also co-authored a chapter on Guatemala in a book called Victims Unsilenced, published in 2007 by the Due Process of Law Foundation. (It's in Spanish.) Here's the link: http://www.dplf.org/uploads/1202485080.pdf.