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Shortlisted
Get PDFAs the New York Times noted in 1971, Mildred Lillie fortunately had no children. Even in her fifties, she maintained a bathing beauty figure. Lillie was not, however, a swimsuit model. She was one of President Nixon\u27s possible nominees for the United States Supreme Court. This Article tells the stories of nearly a dozen extraordinary women considered, but ultimately not nominated, for the Court before Justice Sandra Day O\u27Connor became the first in 1981. The public nature of the nomination process enables us to analyze the scrutiny of these women by the profession and media, and analogize to those similarly not selected, elected, or appointed to political office, corporate boardrooms, the judiciary, law firm partnership, and other positions of power. We find that the stories of those women who did not attain these various power roles are as compelling as those who did. Our work builds upon and transcends previous scholarly work on the theory of the leaking pipeline -i.e. that women enter the profession in numbers equal to men but do not advance-and dispels the persistent myth that there is a dearth of sufficiently qualified women. This project explores decades of women shortlisted to the Court pre-O\u27Connor from Presidents Roosevelt to Reagan, situating gender in a vibrant historical context and offering ideas for advancement of women in the law and beyond. This Article investigates the gendered experiences of an elite group of women-both professional and personal-and situates their stories within the context of gender, judging, and the legal profession. This project is one of first impression. We are the first scholars to identify and assess these women together in light of their shared experience of being shortlisted. Until now, these individual and collective stories have largely gone untold
Informed Consent: The More You Know, the More You and Your Patient Are Protected
No full textCase-based discussion about a surgeon accused of performing a tubal ligation without consent
Stuffed Deer and the Grammar of Mistakes
Get PDFImpossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated nearly 1500 criminal cases as on point, 900 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I hope to decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters. Extant impossibility cases and scholarship take mistakes as a given. But what is a mistake? Is the answer too obvious to mention? Within the stock hypotheticals of impossible attempts, a man shoots a tree stump or a corpse, each mistaken for a live person, or administers a live person an innocuous substance mistaken for poison. These stick-figure hypotheticals pose whether attempted murder has occurred. But because it is stipulated that each action owes to mistake, we are told so little about what happened that of course the question is hard to answer. Any chance of making sense of the hypotheticals is stymied by an absence both of facts and any concern for what can count as a mistake. My contribution here to the considerable work of others is therefore to locate the impossibility defense within an actual context of human action and concern
Illiberty of Contract
Get PDFThe term “liberty of contract” is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market transactions. But the term is ironic because a contract is only legally binding if courts will enforce it. Since courts derive their authority because they are the third branch of government, they are State actors and contractual enforcement involves the exercise of the State’s powers of coercion. This is problematic because the exercise of coercion by the State impinges on liberty. This article presumes that the fundamental purpose of the State is to advance liberty and provides an analysis of the relationship between liberty and contract rules and doctrines. Since it is distinctly Hayekian in motivation and spirit, it offers what might be called a “Hayekian” or “minimalist” libertarian theory of contracts. From this perspective, modern contract theories focusing on consent and consideration are welcome because they limit the use of State coercion. Contract rules and doctrines that facilitate relational agreements, such as the statute of frauds, a “soft” parol evidence rule, the use of mercantile practices and customs to interpret contract terms, and the use of ADR all help to advance liberty. Contract doctrines such as unconscionability, impracticability, and the unenforceability of agreements that are against public policy may also help to militate against the inappropriate exercise of State coercion
Biotechnology and Consumer Decision-Making
Get PDFSociety is facing major challenges in climate change, health care and overall quality of life. Scientific advances to address these areas continue to grow, with overwhelming evidence that the application of highly tested forms of biotechnology is safe and effective. Despite scientific consensus in these areas, consumers appear reluctant to support their use. Research that helps to understand consumer decision-making and the public’s resistance to biotechnologies such as vaccines, fluoridated water programs and genetically engineered food, will provide great social value. This article is forward-thinking in that it suggests that important research in behavioral decision-making, specifically affect and ambiguity, can be used to help consumers make informed choices about major applications of biotechnology. This article highlights some of the most controversial examples: vaccinations, genetically engineered food, rbST treated dairy cows, fluoridated water, and embryonic stem cell research. In many of these areas, consumers perceive the risks as high, but the experts calculate the risks as low. Four major thematic approaches are proposed to create a roadmap for policymakers to consider for policy design and implementation in controversial areas of biotechnology. This article articulates future directions for studies that implement decision-making research to allow consumers to appropriately assign risk to their options and make informed decisions
Business Law Critical to Your Practice: Preventive Law, Like Preventive Medicine, Can Make All the Difference
No full textThe Role of the State towards the Grey Zone of Employment: Eyes on Canada and the United States
No full textIn most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the United States, our thesis is that the state plays a paradoxical role in the growth of nonstandard work and increasing precariousness. To assist the analysis, we construct a matrix for understanding the efforts or inertia on the part of the government. We conclude that there are seven ways in which to comprehend the role played by the government vis-à-vis the grey zone
From Edward to Eric Garner and Beyond
No full textThe year-long period of police killings of unarmed black civilians across the United States between July 2014-15 has been the subject of broad condemnation and discourse, including in the author’s previous police reform article titled Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform (59 Howard L.J. 5 (2015)).In the year following Professor Marcus’s Howard Law Journal police reform article, Marcus continued to track police reform efforts that transpired in the aftermath of the 2014-15 killings. This article, From Edward to Eric Garner and Beyond: The Importance of Constitutional Limitations on Lethal Use of Force in Police Reform, describes how police accountability is slowly beginning to improve, particularly with indictments and convictions being more likely where police killings are captured on video. However, in the killing of Tamir Rice, even video of a police killing of an unarmed twelve-year old boy within seconds of police arriving at a benign playground scene where no one was being threatened, did not result in an indictment or, arguably, any police accountability.In chronicling the police reform efforts that transpired in the year following the 2014-15 police killings, this article details reform efforts through White House and Department of Justice initiatives, investigations, and reports; by civil rights activists; and by the law enforcement community. As to the latter, the article describes how revised lethal use-of-force recommendations issued by the Police Executive Research Forum includes a specific recommendation to ensure that the “21-foot rule,” which Marcus’s Out of Breath and Down to the Wire article had condemned, is no longer a part of police lethal force training. Rather, there is an emphasis in the myriad of reform efforts on measures emphasizing, for example, transparency, de-escalation, community involvement, bias awareness and training, and use-of-force training that emphasizes constitutional standards rather than the previously abused 21-foot rule, the origins of which were not based on constitutional law. This article recommends that in replacing the 21-foot rule with constitutional standards limiting appropriate use of lethal force by police, police trainings must emphasize, along with other constitutional principles, the critical limitation set forth by Tennessee v. Garner prohibiting the use of lethal forced against unarmed fleeing individuals. It is this standard that continues to be offended by a pattern of “he shouldn’t have run” rationalizations that still tend to follow police killings of unarmed civilians in this country