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Federalizing Contract Law
No full textContract law is generally understood as state common law, supplemented by the Second Restatement of Contracts and Article 2 of the Uniform Commercial Code. It is regarded as an expression of personal liberty, anchored in the bargain and consideration model of the 19th century or classical period. However, for some time now, non-bargained or adhesion contracts have been the norm, and increasingly, the adjudication of legal rights and contractual remedies is controlled by privately determined arbitration rules. The widespread adoption of arbitral adjudication by businesses has been enthusiastically endorsed by the Supreme Court as consonant with the Federal Arbitration Act (“FAA”). However, Court precedents have concluded that only bilateral or individualized arbitration promotes the goals of the FAA, while class arbitration is destructive. Businesses and the Court have theorized that bilateral arbitration is an efficient process that reduces the transaction costs of all parties thereby permitting firms to reduce prices, create jobs, and innovate or improve products. But empirical research tells a different story. This Article discusses the constitutional contours of crafting common law for the FAA and its impact on state and federal laws. It shows that federal common law rules crafted for the FAA can operate to deny consumers and workers the neoclassical contractual guarantee of a minimum adequate remedy and rob the federal and state governments of billions of dollars in tax revenue. From FAA precedents the Article distills new rules of contract formation, interpretation, and enforcement and shows how these new rules undermine neoclassical limits on private control of legal remedies. The Article shows that federal contract law now gives firms the ability to contractually control not only legitimate commercial risks but also whether they can be held accountable for breach. Using empirical data and arbitral precedents, the Article demonstrates how federal contract law endorses arbitration terms that facilitate market failure by making legal rights and remedies an illusion. Arbitration contracts also help firms avoid their state and federal tax obligations by making it unpalatable for workers to pursue wage claims. By giving firms the liberty to impose impermissible terms without any penalty, the federal rules undermine the legal promise of a minimum adequate remedy and incentivizes non-compliance with regulations in the public interest. The Article concludes that the federal contract rules do not provide sufficient incentive for contractual or regulatory compliance, and this justifies the historical preference for public law control of legal remedies
Mandatory Arbitration of Sexual Assaults in Maritime Law
No full textThis Comment discusses the emergence of mandatory arbitration clauses in seafarer employment contracts, and how these clauses impact cases of sexual assault. Part II will trace the origin of arbitration, the history of seafarer rights and remedies, a Supreme Court decision that opened the door to arbitration of sexual assaults, and its progeny in the Eleventh Circuit. Finally, Parts III and IV will suggest solutions to address the issue presented in this Comment. With that in mind, this Comment does not aim to disparage or discredit arbitration at large. Arbitration, when mutually agreed to, can be an effective means of alternative dispute resolution. The narrow focus of this Comment is the inequity of compelling arbitration of sexual assaults, and how this phenomenon relates to maritime law
John and June Mary Makdisi: An Intellectual and Moral Journey
No full textJohn and June Mary Makdisi have been our friends and treasured colleagues for many a year. It is with exceptional delight that we present these lines and this volume of intellectual contributions of friends, in the global university tradition of an hommage, a Festschrift celebrating their professional and personal contributions to our St. Thomas Law family on the occasion of their retirement. This Festschrift is also a vessel of admiration, respect, gratitude, warm wishes and prayers for God\u27s grace and blessings for the magic of their new journey
The Transformation of Marriage As a State Institution
No full textThe first section of this essay explores why the good of children requires the institution of marriage to promote the procreation of children by the act of physical-spiritual love between a man and a woman. The second section explores why the good of children requires the institution of marriage to promote the upbringing of children by the lasting, exclusive, and faithful commitment of the couple. The third section explains why Obergefell\u27s removal of the requirement of a legal union between a man and a woman as an essential aspect of marriage not only destroys the function of the marriage institution to promote the proper procreation of children, but in fact involves the State in regulating personal relationships to the detriment of individual privacy and autonomy. The fourth section explains why the Family Law Act\u27s removal of the requirement of a lasting, exclusive, and faithful commitment between the man and the woman as an essential aspect of marriage seriously impairs the function of marriage to encourage and protect the education and upbringing of those children in a continuous environment of parental love, and instead promotes the abdication of parental responsibility. There is no doubt that the importance of morals to law is especially significant in the case of marriage
The Toll of American Exceptionalism on American Justice
No full textEarly in his presidency, Barak Obama observed that the fact that I am very proud of my country and I think that we\u27ve got a whole lot to offer the world does not lessen my interest in recognizing the value and wonderful qualities of other countries, or recognizing that we\u27re not always going to be right, or that other people may have good ideas. The American exceptionalism police were quick to charge him with heresy. Then Louisiana Governor Bobby Jindal lamented, for example, that [t]his is a president who won\u27t proudly proclaim American exceptionalism, maybe the first president ever who truly doesn\u27t believe in that. 2 The presumption that whatever America does or creates is invariably right and better has hardened into a pervasive ideology. Naturally, it includes our system of justice. And so we are able to conclude with little or no familiarity with the more popular inquisitorial model, that our adversarial model is superior in garnering truth, protecting the rights of the accused, and meting out justice. The result of this, however, is not harmless error. It ultimately renders any assessment of our present system unnecessary, blinds us to the potential insights of a comparative perspective on the various models of justice, ultimately stands in the way of reforming aspects of our own system, and impedes the wholesale infusion of morality into our nation\u27s law and legal procedure. 3 And as if to buttress this thread of American exceptionalism and ensure a set of handy talking points to slap down any seditious talk about the merits of continental justice, a variety of misconceptions about the latter model have, over time, evolved and hardened into standard retorts
Protecting Our Pets: Courtroom Advocate or Special Prosecutor?
No full textThis Comment seeks to evaluate the current legal landscape surrounding animal cruelty laws, with a specific focus on Desmond\u27s Law and O.R.C. § 2931.18. Connecticut\u27s new law has placed a spotlight on an area of the law which has not been given the priority it so desperately needs. Animal cruelty is a type of interpersonal violence that does not occur in isolation, and placing more importance on animal cruelty laws can help prevent violence against humans. First, this Comment will provide a history of animal rights laws around the globe, followed by a detailed discussion of why animal abuse issues deserve more attention in our society than they currently receive. This Comment next provides a detailed analysis, followed by a critical comparison, of both Desmond\u27s Law and O.R.C. § 2931.18. Although both laws can serve as models for other states that wish to strengthen their animal cruelty laws, this Comment argues that Ohio\u27s O.R.C. § 2931.18 is a more effective law for the prosecution of animal abuse cases. This Comment concludes with suggestions on how states can better improve their entire body of animal cruelty laws, with the ultimate goal of preventing violence against both animals and humans alike
The Faith and Morals of Justic Antonin Scalia
No full textIt is because of Justice Scalia\u27s suspicion of philosophy and of history that he becomes an outspoken textualist. But why should text carry greater authority? Why should the written word, rather than evolving tradition, be of higher authority, particularly to a Roman Catholic? To understand Antonin Scalia\u27s affirmation of the centrality of text, we must, as many already have, seek to find out how the man viewed his religion and how he practiced it
Professionalism for Law Teachers: Lessons Learned from John Makdisi
No full textI believe that there are valuable lessons to be learned from the way John approaches life as a teacher and the way that his life as a scholar affects his work as an educator. With that in mind, I intend to use this essay as an opportunity to reflect on what I might term academic professionalism. John\u27s approach to his professional life serves as an extraordinarily convenient model on which to base a few, important rules
The Plight of Unreasonable Trafficking Victims: Replacing the Trafficking Victims Protection Act\u27s Reasonable Person Standard for Coercion with a Genuine Belief Standard
No full textSince the enactment of the Trafficking Victims Protection Act of 2000 and its requirement that victims and prosecutors make a showing of coercion under a reasonable person standard, an entire class of victims effectively became unprotected and no longer deemed victims. The inability to meet such a high burden not only produces a lower rate of successful criminal and civil prosecutions, but also-and most alarmingly- precludes many a victim\u27s participation in basic and highly needed governmental services, required both to cope with and recover from the trauma. The consequences are particularly egregious in the context of domestic servitude, where traffickers successfully rely on the prosecution\u27s inability to disprove consent. From the perspective of Policy-Oriented Jurisprudence, this article analyzes the conditioning factors leading to the adoption of the reasonable person standard in our trafficking legislation, all relevant judicial, legislative, and executive actions enforcing it. In addition, it criticizes the standard\u27s conceptual and practical limitations. In the interest of making our antitrafficking regime better approximate a public order of human dignity and current international standards, this article proposes replacing the TVPA\u27s current reasonable person standard to prove coercion with a genuine belief standard
A Thomistic Perspective on Natural Law Reasoning in the Supreme Courts
No full textNatural law plays a prominent role among the various sources of the common law used by supreme court justices. Decisions by the Supreme Court of the United States and the supreme courts of the several states mention it directly by name in over 1400 cases. Yet there is relatively little explanation of the term in most of the decisions. Justices write as if the term is widely understood, but the controversy that has ensued over the use of natural law as a source of the common law suggests that it means different things to different justices. Some justices condemn the use of natural law as a mode of arbitrary decision-making. Other justices extol its use as a source of judgment higher than other sources. This article will examine the meaning of natural law as these justices use it. The preeminent source on natural law is the Summa Theologiae written by St. Thomas Aquinas in the thirteenth century. It provides a simple, but powerful, explanation of natural law as the light of human reason by which a person discern[s] what is good and what is evil. The human reason apprehends good or evil from things to which [a person] has a natural inclination or repulsion, and the human will inclines towards the former and away from the latter as an end. Aquinas defines this direction that human reason gives to a person as the precepts of the natural law by which a person knows that something is to be done or avoided.\u27 However, because human judgment is uncertain, God revealed the Divine Law of the Old and New Testament so that a person could know without doubt what is to be done and what is to be avoided. Thus the Ten Commandments contain several moral precepts which reflect the precepts of the natural law. In fact, all the precepts of the natural law are either so evident that they need no promulgation, such as the precept to love God and neighbor, or they appear in the Decalogue, such as the prohibitions of murder, adultery and theft, or they are reducible to the precepts of the Decalogue as corollaries, such as the prohibitions of hatred, bestiality, and fraud. A review of the opinions of federal and state supreme court justices who refer to natural law reveals that, despite the fear by some that it will be used as an excuse for arbitrariness, they generally affirm natural law as a source of human law. Furthermore, the precepts that these justices espouse as precepts of the natural law generally fall within the precepts of the first eight of the Ten Commandments: (I) Thou Shalt Worship the Lord Thy God; (II) Thou Shalt Not Take the Name of the Lord Thy God in Vain; (III) Keep Holy the Lord\u27s Day; (IV) Honor Thy Father and Thy Mother; (V) Thou Shalt Not Kill; (VI) Thou Shalt Not Commit Adultery; (VII) Thou Shalt Not Steal; and (VIII) Thou Shalt Not Bear False Witness. The two Commandments whose precepts the courts do not mention-(IX) Thou Shalt Not Covet Thy Neighbor\u27s Wife and (X) Thou Shalt Not Covet Thy Neighbor\u27s Goods address the moral goodness of one\u27s interior thoughts, an area that unsurprisingly remains outside the domain of human law. This article organizes the opinions on natural law according to the respective Commandments they follow in order to. illustrate the rich tradition of natural law which our country\u27s justices have developed throughout its history