Reinvigorating and Enhancing Jury Trials Through an Overdue Jury Bill of Rights: A Federal Trial Judge’s View

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Mark W. Bennett Juries are deeply enshrined by the U.S. Constitution and firmly embedded in our system of justice. Thus, it is surprising that jurors do not yet have something akin to their own widely adopted bill of rights. Regrettably, this is the result of too many trial judges failing to practice WWJW—“what would jurors want”—a jury-centered approach to judging. The state of Arizona, with its launch in 1993 of the Arizona Jury Project, is the pioneering jurisdiction of a more jury-centered approach. If trial judges embraced WWJW it would engender greater respect for jurors and lead to trial innovations which would significantly enhance the juror experience. These innovations would also increase the fairness of jury trials. Adopting a bill of rights for jurors improves jurors’ positive experiences and feelings…
Read More

Underinclusivity and the First Amendment: The Legislative Right to Nibble at Problems After Williams-Yulee

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Clay Calvert Using the U.S. Supreme Court’s 2015 opinion in Williams-Yulee v. Florida Bar as an analytical springboard, this Article examines the slipperiness—and sometimes fatalness—of the underinclusiveness doctrine in First Amendment free-speech jurisprudence. The doctrine allows lawmakers, at least in some instances, to take incremental, step-by-step measures to address harms caused by speech, rather than requiring an all-out, blanket-coverage approach. Yet, if the legislative tack taken is too small to ameliorate the harm that animates a state’s alleged regulatory interest, it could doom the statute for failing to directly advance it. In brief, the doctrine of underinclusivity requires lawmakers to thread a very fine needle’s eye between too little and too much regulation when drafting statutes. This Article argues that while Williams-Yulee attempts to better define underinclusivity, its subjectivity remains…
Read More

Incentives, Employers, and the Corporate Veil: Should Domestic Corporations Be More Accountable for the Actions of Their Overseas Subsidiaries?

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Derek Flint The picnic was probably supposed to be an opportunity for the employees of the U.S. parent company to socialize with their counterparts in the Mexican subsidiary. The picnic’s planners likely imagined an afternoon of good, clean fun in Mexico with employees enjoying each other’s company as cold beverages flowed and office formalities slipped away. On this particular afternoon, however, events took a turn for the worse. An executive of the U.S. parent company demanded that 118 female employees of the Mexican subsidiary hold a bikini show, which the executive videotaped. Full Article
Read More

The Curse of the Nation-State: Refugees, Migration, and Security in International Law

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Jill I. Goldenziel How does international law protect migrants? For the most part, it does not. Of the millions of people who flee persecution, conflict, and poverty each year, international law protects only refugees: those who flee persecution on the basis of religion, race, nationality, political opinion, or membership in a particular social group. The 1951 Convention Relating to the Status of Refugees provides critical protections for minorities that must never be diluted. However, it is insufficient to protect the swarms of migrants landing on the shores of Europe and elsewhere, or to guide states on how to protect them while guarding their own security. This Article argues that states have always revised international law regarding displaced people to protect their own security interests and changing circumstances of displacement. The…
Read More

A Nuclear Threat: Why the Price-Anderson Act Must Be Amended Following Cook v. Rockwell

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Daniel Kolomitz Disasters such as Fukushima, Three Mile Island, and Chernobyl have raised public awareness of the dangers of nuclear energy. However, despite this risk, nuclear energy supplies twenty percent of the electricity in the United States. Much of this development is due to the Price-Anderson Act (“PAA”). If a nuclear plant exposes a citizen to dangerous radiation that makes the citizen ill or damages his property, the PAA assures that a federal forum will be available to hear the victim’s claim, provides government funds to assure the victim’s compensation, and gives indemnification to the nuclear operator so that it is not exposed to crushing liability. The PAA only applies to “nuclear incidents”: specific types of damages caused by nuclear sources. If any lawsuit alleges that a nuclear incident occurred,…
Read More

Ready, Fire, Aim: How Universities are Failing the Constitution in Sexual Assault Cases

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Tamara Rice Lave This Article looks critically at the procedural protections American universities give students accused of sexual assault. It begins by situating these policies historically, providing background to Title IX and the different guidelines promulgated by the Department of Education. Next, it presents original research on the procedural protections provided by the fifty flagship state universities. In October 2014, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof, right to an adjudicatory hearing, right to confront and cross examine witnesses, right to counsel, right to silence, and right to appeal. This Article describes findings and then compares them with prior studies. After arguing that state university students are entitled to procedural due process, this Article uses the…
Read More

Exposed: Asking the Wrong Question in Risk Regulation

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Catherine A. O’Neill   Back in 1973, the tuna industry wanted to know how much fish Americans were eating. After asking 7,662 households to record their daily fish intake, the answer came back: people ate fish, but not very often—about once a month. While tuna purveyors mulled what to do with this information, the U.S. Environmental Protection Agency (EPA) borrowed their dataset. EPA used these data to derive a key variable in the equation for calculating people’s exposure to toxic contaminants in the nation’s waters: the fish consumption rate (FCR). This FCR served as the premise for EPA’s initial volley of water quality criteria in 1980 and, subsequently, for water quality standards across the nation. Even today, several states’ water quality standards are based on this FCR, which assumes that…
Read More

Target Discrimination: Protecting the Second Amendment Rights of Women and Minorities

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Daniel Peabody In one of the darkest moments of United States jurisprudence, Chief Justice Roger Taney listed a “parade of horribles” that would result if freed African-Americans were considered “citizens.” This list included the idea that “persons of the negro race, who were recognized as citizens in any one State of the Union,” would have the right “to keep and carry arms wherever they went.” The Dred Scott Court considered African-Americans carrying firearms as too much to bear. While the Dred Scott Court sought to limit minorities’ rights to bear arms when defining “citizen,” the Supreme Court must soon consider protecting the rights of minorities to bear arms when defining the word “bear” in the Second Amendment. Full Article 
Read More

State Constitution Perpetuities Provisions: Derivation, Meaning, and Application

2016, Past Issues, Print, Volume 48 (2016) Issue 3 (Fall)
Les Raatz The Rule Against Perpetuities, over the last decade or so, has attracted greater attention within areas of the estate planning bar. There are interrelated factors that are the primary reasons for this attention. One is the marketing of trusts that are designed to better protect against the ability of creditors of the beneficiaries of a trust to reach assets of the trust to satisfy their claims. Lengthening the period that such assets may remain unvested in beneficiaries in the trusts is touted as enhancing their value and usefulness. The longer period to defer vesting also has beneficial estate tax consequences. If trust property can be held for generations in a trust not subject to the common-law rule requiring the vesting of interests of the trust in the beneficiaries…
Read More