Summer 2014 | Volume 42: Issue 4

Volume 42 | Issue 4| Summer 2014

 

Table Of Contents

Articles
MARRIAGE EQUALITY, UNITED STATES V. WINDSOR, AND THE CRISIS IN EQUAL PROTECTION JURISPRUDENCE
by Susannah W. Pollvogt
POSITIVIST LEGAL ETHICS THEORY AND THE LAW GOVERNING LAWYERS: A FEW PUZZLES WORTH SOLVING
by Amy Salyzyn
DO TELL! THE RIGHTS OF DONOR-CONCEIVED OFFSPRING
by Naomi Cahn
JURY NULLIFICATION: WHAT IT IS, AND HOW TO DO IT ETHICALLY
by Monroe H. Freedman
THE BINARY SEARCH DOCTRINE
by Laurent Sacharoff
A RETURN TO COERCION: INTERNATIONAL LAW AND NEW WEAPON TECHNOLOGIES
by Jeremy Rabkin and John Yoo
Notes
WHAT YOU DO NOT KNOW CAN HURT YOU: HOW THE FINRA EXPUNGEMENT PROCESS IS ENDANGERING FUTURE INVESTORS THROUGH A LACK OF INFORMATION
by James T. Farris
REPEALING PHYSICIAN-ONLY LAWS: UNDOING THE BURDEN OF GESTATIONAL AGE LIMITS
by Ada Kozicz
MAKING GUN OFFENDER REGISTRIES AVAILABLE TO THE PUBLIC: A SAFETY PRACTICE OR TARGET PRACTICE?
by Aaron Zucker
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Spring 2014 | Volume 42: Issue 3

Volume 42 | Issue 3| Spring 2014

 

Table Of Contents

Articles
THE COLLAPSING CONSTITUTION
by Michael D. Cicchini
REGULATION, PROHIBITION, AND OVERCRIMINALIZATION: THE PROPER AND IMPROPER USES OF THE CRIMINAL LAW
by Paul J. Larkin, Jr.
PLASTIC INJURIES
by Anne Bloom
HORTON THE ELEPHANT INTERPRETS THE FEDERAL RULES OF CIVIL PROCEDURE: HOW THE FEDERAL COURTS SOMETIMES DO AND ALWAYS SHOULD UNDERSTAND THEM
by Donald L. Doernberg
DEVELOPING CAPABILITIES, NOT ENTREPRENEURS: A NEW THEORY FOR COMMUNITY ECONOMIC DEVELOPMENT
by Rashmi Dyal-Chand and James V. Rowan
COMPENSATING FACT WITNESSES: THE PRICE IS SOMETIMES RIGHT
by Douglas R. Richmond
COPYRIGHT IN THE EXPANDED FIELD
by Xiyin Tang
Notes
PROMOTING THE PROGRESS OF PERSONALIZED MEDICINE: REDEFINING INFRINGEMENT LIABILITY FOR DIVIDED PERFORMANCE OF PATENTED METHODS
by Erik P. Harmon
SHOW ME THE MEDIATION!: INTRODUCING MEDIATION PRIOR TO SALARY ARBITRATION IN MAJOR LEAGUE BASEBALL
by Sam B. Smith
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Winter 2013 | Volume 42: Issue 2

SYMPOSIUM: THE TENTH ANNIVERSARY OF THE ABA CAPITAL DEFENSE GUIDELINES: THE ROAD TRAVELED AND THE ROAD TO BE TRAVELED – PART TWO 

Table Of Contents

Articles
INTRODUCTION: THE CONTINUING QUEST FOR HIGH-QUALITY DEFENSE REPRESENTATION IN CAPITAL CASES
by Eric M. Freedman
SUDDEN DEATH: A FEDERAL TRIAL JUDGE’S REFLECTIONS ON THE ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES
by Mark W. Bennett
IMPROVING STATE CAPITAL COUNSEL SYSTEMS THROUGH USE OF THE ABA GUIDELINES
by Robin M. Maher
THE CONTINUING DUTY THEN AND NOW
by David M. Siegel
MOTIVATION MATTERS: GUIDELINE 10.13 AND OTHER MECHANISMS FOR PREVENTING LAWYERS FROM SURRENDERING TO SELF-INTEREST IN RESPONDING TO ALLEGATIONS OF INEFFECTIVE ASSISTANCE IN DEATH PENALTY CASES
by Tigran W. Eldred
DECONSTRUCTING ANTISOCIAL PERSONALITY DISORDER AND PSYCHOPATHY: A GUIDELINES-BASED APPROACH TO PREJUDICIAL PSYCHIATRIC LABELS
by Kathleen Wayland & Sean D. O’Brien
THE DEVELOPMENT OF CHINA’S DEATH PENALTY REPRESENTATION GUIDELINES: A LEARNING MODEL BASED ON THE ABA GUIDELINES FOR THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH PENALTY CASES
by Jie Yang
Notes
IN THE SYSTEM: FACILITATING THE REUNIFICATION OF THE CHILD AND THE PARENTS THROUGH RELIGION
by Cherie Nicole Brown
ASOCIAL MEDIA: COPS, GANGS, AND THE INTERNET
by James R. O’Connor
TAX CREDITS FOR TATTLETALES: LEGISLATING TO CATCH CRAIGSLIST CRIMINALS
by Michal Ovadia
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Fall 2013 | Volume 42: Issue 1

SYMPOSIUM: THE ETHICAL INFRASTRUCTURE AND CULTURE OF LAW FIRMS

Table Of Contents

Articles
FOREWORD: SYSTEMATICALLY THINKING ABOUT LAW FIRM ETHICS: CONFERENCE ON THE ETHICAL INFRASTRUCTURE AND CULTURE OF LAW FIRMS
by Susan Saab Fortney
LAW FIRM MALPRACTICE DISCLOSURE: ILLUSTRATIONS AND GUIDELINES
by Anthony V. Alfieri
ETHICAL DECISIONMAKING AND THE DESIGN OF RULES OF ETHICS
by John S. Dzienkowski
THE RELATIONAL INFRASTRUCTURE OF LAW FIRM CULTURE AND REGULATION: THE EXAGGERATED DEATH OF BIG LAW
by Russell G. Pearce & Eli Wald
NESTED ETHICS: A TALE OF TWO CULTURES
by Milton C. Regan, Jr.
APPLYING THE REVISED ABA MODEL RULES IN THE AGE OF THE INTERNET: THE PROBLEM OF METADATA
by Ronald D. Rotunda
THE CASE FOR PROACTIVE MANAGEMENT-BASED REGULATION TO IMPROVE PROFESSIONAL SELF-REGULATION FOR U.S. LAWYERS
by Ted Schneyer
Notes
WE THE PEOPLE OR WE THE LEGISLATURE?: THE STOCK ACT’S COMPROMISE BETWEEN POLITICALLY-MOTIVATED ACCOUNTABILITY AND KEEPING CONGRESS ABOVE THE LAW
by Danielle A. Austin
ENSURING EFFECTIVE COUNSEL FOR PARENTS: EXTENDING PADILLA TO TERMINATION OF PARENTAL RIGHTS PROCEEDINGS
by Sarah Freeman
THE FORGOTTEN AMENDMENT AND VOTER IDENTIFICATION: HOW THE NEW WAVE OF VOTER IDENTIFICATION LAWS VIOLATES THE TWENTY-FOURTH AMENDMENT
by Brendan F. Friedman
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Title III of the JOBS Act: Using Unsophisticated Wealth to Crowdfund Small Business Capital or Fraudsters’ Bank Accounts? by Benjamin P. Siegel

Starting a business is a significant undertaking. Entrepreneurs often work grueling, around-the-clock hours in high-pressure environments for the opportunity to be one of the rare successful businesses that survive the first few tumultuous years. Recently, the impetus behind entrepreneurship has been a shot at quick and tremendous success, as exemplified by companies like Facebook, Instagram, Twitter, Rovio, and Zynga.

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Freedom From Food: On the Need to Restore FDR’s Vision of Economic Rights in America, and How It Can Be Done by Evgeny Krasnov

Within the U.S. policy discourse, it has long been taken for granted that the body of human rights law does not—and should not—include economic rights, which include the right to adequate food, shelter, and health care. This is an irony of history, since the origins of modern-day economic rights law lie in the policies advocated by the U.S. President Franklin Delano Roosevelt. This Note argues that (1) the common justifications for neglecting economic rights are not sound; (2) there is a pressing need to recognize economic rights in the United States; and (3) the best way to do so is to ratify and implement the International Covenant for Economic, Social, and Cultural Rights, or ICESCR. This Note illustrates how this can be successfully accomplished through a blueprint for enforcing one right from the Covenant—the right to adequate food—in the United States. By restoring Roosevelt’s vision through the ICESCR, the U.S. government will strengthen its moral stance on the world stage and help secure the integrity of Americans’ human rights.

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At War With The Robots: Autonomous Weapon Systems and the Martens Clause by Tyler D. Evans

The Three Laws of Robotics (“Three Laws”) are an elegant set of hierarchical rules that ethically and physically govern Isaac Asimov’s science fiction robots. The Three Laws are programmatically embedded in the robots’ “positronic brains,” and control their behavior and reasoning primarily to safeguard the human beings they were built to serve. The Three Laws—successful in fiction for their simplicity, novelty, and literary purposes—are ill suited for the contemporary military reality, and are generally regarded as an inadequate basis for machine ethics.

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The ABA Guidelines and the Norms of Capital Defense Representation by Russell Stetler & W. Bradley Wendel

The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“Guidelines”), as revised in 2003, continue to stand as the single most authoritative summary of the prevailing professional norms in the realm of capital defense practice. Hundreds of court opinions have cited the Guidelines. They have been particularly useful in helping courts to assess the investigation and presentation of mitigating evidence in death penalty cases. This Article will discuss how these Guidelines have come to reflect prevailing professional norms in this critical area of capital defense practice and how that practice has developed in the era of the modern U.S. death penalty. One of the principal arguments we will make in this Article is that courts interpreting the Sixth Amendment’s guarantee of effective assistance of counsel should look to what competent lawyers ought to do rather than what some lawyers appointed to represent capital defendants actually do . . . .

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Overlooked Guidelines: Using the Guidelines to Address the Defense Need for Time and Money by Meredith Martin Rountree & Robert C. Owen

In 2003, Professor Eric M. Freedman, Reporter for the revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”), observed that one of the ABA Guidelines’ central virtues was to recognize that the death penalty is expensive.1 Fairness in the application of the ultimate punishment requires governments to develop systems to allocate essential resources, like compensation for counsel and funds for experts and investigators.2 Ten years later, this Article revisits Professor Freedman’s observation by exploring the question of resources and urging counsel to increase their use of the ABA Guidelines in fighting for the irreducible minima of reasonably effective representation: time and money.

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Professional Discipline of Death Penalty Lawyers and Judges by Monroe H. Freedman

On this, the fiftieth anniversary of Gideon v. Wainwright’s broken promise, I have been asked to propose guidelines that (a) provide professional discipline of lawyers who fail to provide competent representation in death penalty cases, but that (b) do not discourage good lawyers from taking death cases or from cooperating with successor counsel who is trying to show that the lawyers were ineffective at trial. It is a pointless exercise. And I have added another pointless exercise, drafting guidelines that will discipline judges who appoint lawyers in death cases whom the judges know or should know will give incompetent representation.

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