Category: Volume 55 No. 3

What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy

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Even before the financial crisis of September 2008, the average American worker would confidently report we live in troubled times. Staggering income inequality has become the norm in the United States. Medical care has become an unaffordable luxury for working Americans who lack employer-provided health insurance. New forms of work organization and employment have rendered once secure jobs vulnerable and, in some cases, removed those who labor from the protective ambit of labor and employment law. A weakened labor movement is increasingly at pains to protect those employees with union representation from the fluctuations of global markets. Of course, most American workers have no representation at all. Read More …

Ideological Dissonance, Disability Backlash, and the ADA Amendments Act

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Upon its original passage, the ADA was described by some as the most significant civil rights legislation since the Civil Rights Act of 1964. Not quite twenty years after the Act’s passage, that characterization was severely challenged as courts took an increasingly strict approach to the definition of disability. The judicial construction of the ADA was decried as inappropriately restrictive, or more forcefully, as a “backlash” against individuals with disabilities. Appeals were made to Congress to amend the statute to provide for a broader interpretation of disability status. Read More …

Vigilante Justice: Prosecutor Misconduct in Capital Cases

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Prosecutors bear a heavy responsibility in capital cases, and codes of professional responsibility recognize the core role of prosecutors. The Model Code of Professional Responsibility and the Model Rules of Professional Conduct note the important obligation prosecutors have to seek justice and not just to act as advocates. The Supreme Court has emphasized that the interest of the government “in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Fortunately, most prosecutors take their special legal, ethical, and moral obligations as to seek justice seriously, “which is most certainly a difficult duty to be carried out carefully and cautiously.” Read More …

Symmetrical Use of Universal Damages Principles—Such as the Principles Underlying the Doctrine of Proximate Cause— To Distinguish Breach-Induced Benefits That Offset Liability from Those That Do Not

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“Remedies” is its own area of law, the focus of which is “the bottom line.” It is the source of law that determines just what a prevailing plaintiff in a civil case wins and, conversely, just what the defendant in that case loses. In many cases, this bottom line is determined by a deceptively simple, but critically important, principle: the “rightful position” principle. Whether the plaintiff’s claim is based on the defendant’s breach of a duty imposed by law or a duty undertaken by contract, the rightful-position principle usually directs an award of money—i.e., compensatory damages—that is supposed to place the plaintiff, as nearly as a sum of money can, in the position that he or she would have occupied but for the breach. Read More …

An Analysis of Federal Rule of Evidence 502 and its Early Application

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On September 19, 2008, President George W. Bush signed S.2450, a bill sent to him by the 110th Congress. The new law was enacted to “amend the Federal Rules of Evidence to address the waiver of the attorney-client privilege and the work product doctrine” by adding a new Rule 502 to the Federal Rules of Evidence. This Paper reviews the background and need for a new law, evaluates the rule itself, and analyzes its impact in the fifteen months since it became effective. First, this Paper briefly explains the attorney-client privilege and work-product doctrine and discusses the development of privilege law in federal courts prior to the enactment of Rule 502. It continues by highlighting some of the significant problems that led Congress to conclude that the new rule was necessary. The next part of this Paper provides a detailed analysis of the rule itself and considers the choice-of-law and constitutional implications the rule raises. The final part takes a close look at the rule’s early application, through the lens of several judicial decisions, and offers a framework to help practitioners and courts properly apply the rule. Read More …

The Constitution and the American Federal System

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The American federal system as we know it today was not planned. We did not adopt a Constitution at the time of Independence or at any time thereafter establishing the structure of a federal system and allocating power between the federal government and the states. Rather the structure of the American federal system has evolved over a period of time as a result of the Supreme Court’s interpretation of the provisions of the Constitution dealing with federal and state power and the Court’s development of constitutional policy with respect to the nature and operation of the American federal system. Read More …

Elevating Form Over Substance: Why Circuit Courts Must Modify Their Procedural Approach to Juries’ Use of the Bible in the Sentencing Phase of a Capital Case

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In the New Testament, St. Paul speaks of the moral authority God gives local governments; authority which includes the power to “execute wrath” upon evil-doers for the greater good. In America, where more than eight-in-ten citizens self-identifies as a Christian, more than a few people agree with Paul. Many others likely do not, believing instead that the totality of the New Testament encourages an abolitionist position on capital punishment. Read More …

Michigan Road-Ends: Protecting Private Property Rights While Preserving Public Access To Inland Lakes

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The State of Michigan has over 11,000 inland lakes for its residents and visitors to enjoy. In fact, no matter where you are in Michigan, an inland lake is never more than a six mile drive away. Despite the close proximity, discussion of Michigan’s inland lakes reminds many Michiganders of summer trips “Up North,” with days spent swimming, fishing, or boating on bodies of water such as Higgins Lake. Unfortunately, pristine days of relaxation have been replaced with days of courtroom litigation. Read More …

Exempt No More: An Examination of the Ninth Circuit’s Recent Application of Section 501(C)(4) to Non-Profit Health Insurance Providers

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The recent decision of the Ninth Circuit Court of Appeals in Vision Service Plan v. United States has created a great deal of uncertainty in the health care industry concerning the requirements that a non-profit health insurance provider must meet in order to qualify as a tax-exempt social welfare organization. This Note will analyze the impact of the Ninth Circuit’s decision on both the health care industry and on purchasers of health insurance. In addition, this Note will argue that the United States Congress should, as a matter of public policy, take immediate legislative action to establish a clearer and more liberal set of guidelines to allow non-profit health insurance providers such as Vision Service Plan to continue to operate under a non-profit, tax-exempt business model in order to keep quality health care accessible and affordable to all Americans. Read More …