Articles

Common Law and Federalism in the Age of the Regulatory State

Over the past several decades, the growth of federal statutes and the rise of the regulatory state has weakened and displaced state common law even in the absence of preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the "new federalism," such progressive c...

Let the People Speak: Terrorism, the Abortion Debate, and Reduction of the Jury Award in Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists

This Note addresses the Ninth Circuit's reduction of the $108-million punitive-damages award in Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, an infamously controversial case involving threats against an abortion clinic and its practitioners. Critics of the case and its jury award have claimed that it "chills" the exercise of First Amendment free-speech rights. This Note examines the relatively new doctrine of substantive due process under which the ...

National Parks: For Use and Enjoyment or for Preservation? and the Role of the National Park Service Management Policies in That Determination

This Note tracks the history and the legislation of the national parks, focusing on whether the parks' primary purpose is preservation or use and enjoyment. The Note determines that since Congress mandated both elements as the "purpose" of the parks, the National Park Service, the governmental body charged by Congress to carry out this purpose, must accommodate both. The discussion includes an analysis of the National Park Service's main policy document, Management Policies 2001, and explores...

Race-ing Patents/Patenting Race: An Emerging Political Geography of Intellectual Property in Biotechnology

I. Introduction. II. Race, Genes, and Drug Development. III. Producing and Organizing Social Data on Race and Ethnicity: OMB Directive 15. IV. Producing and Organizing Genetic Information: Federally Sponsored Genetic Databases. V. Bidil: Portent of Things to Come. VI. The Rise of Racial Patents. A. Patent Law Basics. B. Constructing the Nature/Culture Divide in Patent Law. C. Racial Patents. D. The use of Race in Biotechnology Patents. E. The Unstated White Norm in Biomedicine. F. Conflat...

Secrecy and Separated Powers: Executive Privilege Revisited

Introduction. I. Introduction to Executive Privilege: Further Background and Relationship to Congressional Information Demands. II. Existing Doctrine and Scholarship. A. Existing Doctrine. B. Major Scholarly Arguments. III. Secrecy and Separated Powers: The Argument for a New Approach to Executive Privilege. A. Getting to the New Approach: Overlapping Powers and the Special Constitutional Significance of Information Control. 1. History and Executive Privilege. 2. Article I, Article II, Functi...

Stigmatic Harm and Standing

If the government violates the law in a way that stigmatizes a particular group, does a member of that group have standing to challenge the violation in federal court? In the well-known case of Allen v. Wright, the Supreme Court said no. According to the Court, stigmatic harm is too abstract and generalized to support standing in most cases. To permit standing on the basis of stigmatic harm alone, the Court stated, would "transform the federal courts into no more than a vehicle for the vindic...

Taking a Chance with the Burden of Proof: The But-For Test in Homicide Case Law

Homicide cases involving concurrent causation present a potential problem with the traditional but-for causation test. Professor Eric Johnson articulated this problem in a recent article in the Iowa Law Review, where he contends that the tort doctrine of lost chance explains findings of liability in cases of concurrent causation. This Note argues that lost chance does not qualify as a species of causation-primarily because it does not comport with the requirement of proof beyond a reasonable ...

Telling Truths: How the REAL ID Act's Credibility Provisions Affect Women Asylum Seekers

When a persecuted woman flees her country, she rarely brings with her evidence of persecution for a future asylum hearing in a far-away land. Because of this unavailability of corroborating evidence, asylum law has historically given great weight to the applicant's testimony. If it is deemed credible, her testimony may be the only evidence necessary to meet her burden of proof. Thus, credibility is essential to a grant of asylum. The REAL ID Act of 2005 adds a new credibility provision to the...