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Augustinian Property
No full textThis volume examines the relationship between Christian legal theory and the fields of private law.
Recent years have seen a resurgence of interest in private law theory, and this book contributes to that discussion by drawing on the historical, theological, and philosophical resources of the Christian tradition. The book begins with an introduction from the editors that lays out the understanding of private law and what distinguishes private law topics from other fields of law. This section includes two survey chapters on natural law and biblical sources. The remaining sections of the book move sequentially through the fields of property, contracts, and torts. Several chapters focus on historical sources and show the ways in which the evolution of legal doctrine in areas of private law has been heavily influenced by Christian thinkers. Other chapters draw out more contemporary and public policy-related implications for private law.
While this book is focused on the relationship of Christianity to private law, it will be of broad interest to those who might not share that faith perspective. In particular, legal historians and philosophers of law will find much of interest in the original scholarship in this volume. The book will be attractive to teachers of law, political science, and theology. It will be of special interest to the many law faculty in property, contracts, and torts, as it provides a set of often overlooked historical and theoretical perspectives on these fields.https://scholarship.law.ua.edu/fac_bookchapter/1000/thumbnail.jp
Stealing Organs?
Full text linkEvery nine minutes, a new person joins a waitlist for an organ transplant, and every day, seventeen people die waiting for an organ that will never come. Because the need for organ transplants far outstrips the number of available organs, the policies and rules governing organ allocation in the United States are critically important and highly contentious. Recently, proponents of a new allocation system one focused more on sharing organs across the nation instead of allocating organs primarily to local transplant candidates have gained ground. Bolstered by two separate lawsuits in the past five years, advocates of greater national sharing have succeeded in changing the allocation rules for lungs and livers, with policies for other organs in development. This Article engages with the debate over whether national or local patients should receive priority under organ allocation systems. Focusing specifically on liver allocation, it provides an innovative empirical analysis of the primary arguments and evidence that those in favor of national allocation policies have used to support their preferred policies that the sickest patients should receive donated organs first, regardless of their location. While this argument is both ethically and intuitively appealing, those opposed to greater national organ sharing have argued that measures of sickest patients are both flawed and subject to manipulation. Greater national organ sharing can also exacerbate existing inequities in the organ transplant system as wealthy urban areas generally import organs from poorer and more rural parts of the country. Analyzing a dataset of every patient waitlisted for a liver between 2002 and 2017, this Article reveals, for the first time, a deeply troubling reality. The results of the analysis suggest that transplant professionals have routinely manipulated the waitlist priority of their patients. Moreover, this manipulation occurs more often in areas of the country that argue most vehemently in favor of national allocation policies. This Article argues that these recent policy changes, favoring greater national organ sharing, are extensions of the manipulative tactics revealed by the empirical analysis. Given the results of the empirical analysis, this Article argues that the time has come to formalize local priority in organ allocation policy by amending the National Organ TransplantAct. This amendment would roll back recent changes to promote greater national organ sharing that have been justified with manipulated evidence and prevent organs from moving from poorer to wealthier areas of the country. This rollback represents an important first step in combating inequities in the transplant system
Beyond Bristol-Myers: Personal Jurisdiction over Class Actions
Full text linkThe Supreme Court\u27s 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution would permit multistate or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a foreign defendant, no such state may exist. This issue potentially implicates a range of difficult and unsettled doctrinal, practical, conceptual, and theoretical questions-about both personal jurisdiction and class actions. This Article, however, proposes a clean solution that coheres with existing case law while retaining the vitality of class actions to provide meaningful remedies in cases where systemic wrongs have nationwide consequences. On this approach, specific jurisdiction would be proper in any case where (a) there is specific jurisdiction over the named plaintiffs claim against the defendant; and (b) a class action led by that plaintiff would satisfy the certification requirements of Rule 23. This solution finds support not only in longstanding practice prior to Bristol- Myers, but in the more fundamental principles and policies underlying specific jurisdiction. The impact of these underlying values has been further bolstered by the Supreme Court\u27s most recent decision on personal jurisdiction-Ford Motor Co. v. Montana Eighth Judicial District Court. The upshot is that personal jurisdiction can exist over a class action even if the forum state would not have personal jurisdiction over a hypothetical separate action by an out-of-state individual who is an unnamed member of the class. Moreover, this Article\u27s proposal makes it unnecessary for courts to confront thornier questions that would otherwise arise. Those questions include: the proper timing and procedural mechanism for objecting to personal jurisdiction with respect to the claims of unnamed class members; whether the jurisdictional constraints apply differently in federal courts and state courts; whether they apply differently to claims based on substantive federal law as opposed to state-law claims; the precise scope and justification for pendent personal jurisdiction; and the extent to which post-service events in federal court (such as class certification) are subject to the more expansive Fifth Amendment test for federal court personal jurisdiction. Under this Article\u27s solution, courts have a straightforward way to examine personal jurisdiction over class actions that does not hinge on or implicate these other issues
Assessing Amateurism in College Sports
Full text linkCollege sports generate approximately $8 billion each year for the National C[artel] Athletic Association and its member institutions. Most of this revenue flows from lucrative television broadcasting deals, which often incorporate the right to commercialize and sell the names, images, and likenesses of college athletes. Under its current revenue scheme, student-athletes-85 percent of whom live below the poverty line-receive a share of zero. For over a century, we\u27ve justified this exploitative distribution scheme under a cloak of student-athlete amateurism. Antitrust challenges to the NCAA\u27s amateurism rules clash with the assumption that amateurism is a revered tradition and an important tenet upholding the value and integrity of U.S. college sports. But is this true? Is amateurism in U.S. college sports such hallowed ground? And, if so, what values should animate the distinctions society values between collegiate and professional sports? Does it mean college athletes shouldn\u27t get paid
Antidepressants Are the Most Commonly Discontinued Psychotherapeutic Medications in Pregnancy
No full textPsychiatric illnesses are common during the perinatal period. The use of antipsychotic medication during pregnancy has increased over the past two decades. In many instances, clinicians agree that untreated psychiatric illness during the perinatal period is more dangerous than the risks imposed by continuing psychotherapeutic medication. We describe patterns of psychotherapeutic medication continuation and discontinuation during pregnancy in a large U.S. cohort
Bringing Predictability to the Chaos of Punitive Damages
Full text linkPunitive damages remain unique in the American legal system. Awarded in the civil context with none of the protections offered in criminal law, courts levy punitive damages to punish and deter. The Supreme Court of the United States has clearly stated that courts may only seek to achieve these two goals when imposing punitive damages. A closer reading of the Court\u27s punitive damages jurisprudence, however, reveals another goal that has largely been ignored: predictability. Unlike punishment and deterrence, predictability is not a purpose for which to award punitive damages. Instead, the Court requires that, when awarded, the level of punitive damages must be predictable. Failure to provide fair notice of the penalty for which a defendant may be liable amounts to a violation of the Fourteenth Amendment\u27s Due Process Clause.
Though the Supreme Court has articulated that predictability is on par with punishment and deterrence in its punitive damages jurisprudence, the question remains as to whether this goal has been achieved This Article answers that question with an empirical analysis of 167 blockbuster punitive damages awardsthose over $100 million. These extreme awards offer a unique and important opportunity to investigate whether the Court\u27s current approach to predictability has worked Unfortunately, it has not. Our analysis reveals that blockbuster awards remain unpredictable. In general, the amount of blockbuster punitive damages awarded is roughly as predictable as deaths caused by catastrophic floods, and few would argue that devastating natural disasters are readily predictable.
Given the continued unpredictability of punitive damages, as evidenced by the random occurrence of blockbuster awards, this Article takes the next logical step of articulating a new constitutional framework. We argue that the Supreme Court should abandon its complicated system based on three guideposts, which eschews bright-line rules. In its place, we offer a clear limit on punitive damages. We propose that punitive damages may not exceed the compensatory damages awarded against the same defendant by more than a factor of three. This 3-to-l ratio limit stems from the same type of empirical evidence that the Court has historically embraced in its punitive damages jurisprudence. The lone exception to this limit applies when a person is killed or injured In that case, the value of statistical life serves as the lodestar for determining the total damages payment, thus guiding courts toward predictable punitive damages awards. If the Court takes predictability as seriously as it has stated, it can adopt our approach to take meaningful steps toward this important goal
What Is Consumer Protection for?
Full text linkWhen law and economics barreled its way into consumer protection scholarship two score years ago, it brought with it the consumer sovereignty framework: an approach to analysis in which actual markets are compared to an ideal market in which consumers optimize exogenous welfare functions by choosing between optimally competitive sellers. Even after two decades of behavioralist critique and even with increasingly critical perspectives taking root since the Global Financial Crisis, this consumer sovereignty ideal continues to serve as both a descriptive and normative baseline for consumer protection scholarship.
This Article argues that it is time to reconsider the consumer sovereignty framework in toto. A moral economy framework would be better. Instead of treating consumers as welfare maximization machines that sometimes malfunction, we ought to conceptualize them as bundles of socially influenced habits. Instead of treating markets as deviations from an ideal of perfect competition, we ought to conceptualize them as socially constructed and reproduced institutional forms. Instead of treating the goal of consumer markets as having rational consumer choice drive all outcomes, we ought to treat consumer markets as having multiple purposes, in accordance with their role in contributing to (a contestable account of) human flourishing. In sum, consumer markets are collectively created spaces to serve social ends.
Thinking about consumer protection in this way allows us to see many existing laws in a new light, to draw together disparate strands of scholarship that dissent from economic orthodoxy, and to ask different sorts of questions about what and for whom consumer protection is for
The Unfulfilled Promise of Environmental Constitutionalism
Full text linkThe political push for the adoption of state-level green amendments in the United States has gained significant traction in just the last couple of years. Green amendments add an environmental right to a state\u27s constitution. Five such amendments were made in the 1970s in Pennsylvania, Montana, Hawaii, Massachusetts, and Illinois. This Article looks in depth at the case law that has developed the contours of these constitutional environmental rights in the wake of the political revival of environmental constitutionalism in the United States. I distill two lessons from this jurisprudence. First, constitutional environmental rights are interpreted by the courts as procedural rights, not substantive rights. Second, in interpreting constitutional environmental rights, courts look to other legal doctrines to define the content and scope of the constitutional environmental right, generally on the basis of the constitutional language. I argue that because these rights are interpreted as procedural rights, they fail to effectuate the paradigm shift that we should expect from a rights-based environmentalism, and so the promise of environmental constitutionalism remains unfulfilled
