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Bernard Parks Jr. and BPJ Enterprises, Inc., Order on Carter & Associates Enterprises, Inc.\u27s Motion to Dismiss and Plaintiff\u27s Motion for Preliminary Injunction
Get PDFA Wrong Without a Remedy: Leaving Parents and Children With a Hollow Victory in Lawsuits Against Unscrupulous Sperm Banks
No full textFor over six years, parents of children conceived with sperm purchased from the Atlanta-based sperm bank Xytex have sued the company for debilitating genetic conditions allegedly originating from the sperm. These lawsuits rely on a wide range of different legal theories, including fraud, negligent misrepresentation, breach of warranty, professional negligence, product liability, unfair trade practices, unjust enrichment, and battery. Until recently, state and federal courts in Georgia dismissed these claims as tantamount to claims for wrongful birth, a cause of action rejected by the Supreme Court of Georgia in 1990. The Supreme Court of Georgia recently distinguished several of the plaintiffs\u27 theories of recovery from wrongful birth, finally enabling pending claims against Xytex to proceed to discovery. However, this may prove to be a hollow victory because the recovery available under viable claims against Xytex is likely to be insufficient to finance plaintiffs\u27 litigation efforts. The Supreme Court of Georgia has, for practical purposes, left the victims of unscrupulous sperm banks without a remedy
Dissent and the Rule of Law
No full textBoth the right to dissent and the “rule of law” are celebrated and frequently invoked values. Yet widespread popular dissent, such as that seen in the recent Black Lives Matter protests sparked by the police killing of George Floyd and others and a strong backlash against protestors by some political leaders, has deeply challenged the compatibility of those values. This tension raises deep theoretical questions about the essential concept of the rule of law, questions that have not yet been addressed by legal theorists. Consensus is greatest with respect to some of the formal characteristics of the rule of law, and formal definitions of the rule of law focus on formal properties of governance by law, primarily properties associated with the legality principle. Yet many reject the formal definition as overly neutered, contending instead that if it is to mean anything, the concept of the rule of law must not merely restate formal principles of legality, but instead must also include some substantive content, such as a minimum respect for private property or basic human rights. While both sides of this debate make important points, I contend in this Essay that there is a critical middle ground between the two positions. While the concept of the rule of law may not necessarily incorporate the entire spectrum of civil and political rights, the very logic of the rule of law demands respect for and adherence to a core set of substantive values beyond the merely formalistic properties of legality identified by legal philosophers like Joseph Raz. At the same time, the concept of the rule of law is not, as the formalists correctly argue, infinitely pliable. It cannot be made to stand for all things thought desirable by critics and interlocutors in political debate. But the parameters of the rule of law concept need not be arbitrarily drawn. Rather, they are inherent in the concept itself. What we discover when we examine what lies at the intersection of the formalist and substantivist approaches is a core set of overlapping principles that are substantivist in nature, but necessary to the formalist rule of law project. This key substantive component is toleration of and respect for the practice of dissent
Did Bobby Jones & Augusta National Block the Pari-Mutuel Gambling Bill of 1935?
Get PDFA few weeks before the Second Annual Masters Tournament, a bill to legalize pari-mutuel wagering looks like it is destined to pass the Georgia legislature before it suddenly dies
Distinguishing Plea Discounts and Trial Penalties
Get PDFWe know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there’s widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it’s not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don’t know what to look for when searching for evidence of penalties and discounts in the real world.
This Article seeks to bring greater theoretical and empirical clarity to the debate. To that end, I propose a theoretical definition of plea discounts and trial penalties. Applying this framework to the existing literature, I argue that there is strong theoretical and anecdotal evidence of trial penalties but little systematic empirical evidence. Nearly all of the statistical research has only studied the plea-trial differential; because both discounts and penalties are equally consistent with the existence of such a differential, the literature cannot distinguish between them.
To develop a robust statistical test of the discount and penalty theories, we need to look elsewhere—where they make different predictions about prosecutorial behavior. Contrary to the views of the third camp of scholars—who maintain that’s impossible—I show that discounts and penalties are only indistinguishable if we assume litigation costs and acquittal probabilities are static. But they aren’t. They change all the time, and as a result, the discount and penalty theories diverge from each other, predicting different prosecutorial behavior. I argue that this theoretical insight might be used to develop an empirical test to help assess the prevalence and intensity of discounts and penalties in criminal court
