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Ellen S. Podgor, Regulating Lawyers: Same Theme, New Context, 2010 Journal of the Professional Lawyer 191 (2010)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, The Tainted Federal Prosecutor in an Overcriminalized Justice System, 67 Wash. & Lee L. Rev. 1569 (2010)Clicking on the button will copy the full recommended citation.
The infiltration of politics in the Department of Justice (DOJ) is the discussion in four recent oversight reports. Commentators and scholars have responded with varying solutions to ensure these mistakes will not be repeated.
This Essay looks at politicization in DOJ from a different angle. It focuses first on the importance of maintaining political neutrality in DOJ and then stresses the need to examine structural changes in the criminal justice process that will minimize the ability to have decisions that might be politicized or might suggest an appearance of being politicized. Instead of focusing only on corrections to alleviate politicization in the federal criminal justice system, the focus also needs to look at overcriminalization, the breadth or many criminal statutes, the increased lack of mens rea required in criminal offenses, and the ability of prosecutors to use “short-cut” offenses to proceed with charges with relatively little proof. Conquering systemic problems accruing from an overcriminalized system will assure that decision-making is consistent and not a product of a prosecutor’s personal preferences. Thus, even if politicization should again enter into the DOJ, limited power in decisionmaking would avoid any possible problems that might accrue from the appearance or reality of having politically connected decisionmakers.
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Luz Estella Nagle, Corruption of Politicians, Law Enforcement, and the Judiciary in Mexico and Complicity Across the Border, 21 Small Wars and Insurgencies 95 (2010)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Welcome to the Other Side of the Railroad Tracks: A Meaningless Exclusionary Rule, 16 Southwestern Journal of International Law 299 (2010)Clicking on the button will copy the full recommended citation.
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Marco Jimenez, The Many Faces of Promissory Estoppel: An Empirical Analysis Under the Restatement (Second) of Contracts, 57 UCLA L. Rev. 669 (2010)Clicking on the button will copy the full recommended citation.
This Article examines more than three hundred promissory estoppel cases decided between January 1, 1981, when the Restatement (Second) of Contracts was published, and January 1, 2008, when research for this project began, to explore the manner in which courts conceptualize, decide, and enforce promissory estoppel claims under § 90 of the Restatement (Second) of Contracts. Specifically, because the drafters of the Restatement (Second) made several important changes to § 90 of the Restatement (First) with the intent of making promissory estoppel more available, the role of reliance more prominent, and the remedies awarded to successful litigants more flexible, this Article investigates whether these changes have had their desired effect on promissory estoppel doctrine as reflected in the case law.
The research presented here can be interpreted to support three major claims. First, these data suggest that promissory estoppel is a much more significant theory of promissory recovery than has been previously thought and seems positioned to continue to grow in importance in the coming decades. Second, the data reveal that promissory estoppel cannot be understood exclusively in terms of “promise” or “reliance,” as some scholars and judges have suggested. Instead, the data reveal that most judges require the existence of both promise and reliance before allowing a promissory estoppel claim to proceed, although surprisingly few judges require a plaintiff to show that the equitable principle of “justice” has been satisfied. Last, and most significantly, these data reveal that, with respect to remedies, courts tend to treat promissory estoppel actions as traditional breach of contract actions, in that courts generally tend to award the (usually) more generous expectation measure of damages, which is typical in ordinary breach of contract actions, over the (usually) less generous reliance measure of damages, which is often awarded where non-contractual obligations have been breached (such as in tort law). However, by replacing these conceptual labels (such as “expectation” and “reliance” damages) with a more functional classificatory scheme capturing whether a promissory estoppel plaintiff has obtained the highest recovery available under any other theory of promissory recovery, including a “traditional” breach of contract action, this Article argues that the extent to which courts have treated promissory estoppel claims as fully contractual has been underappreciated.
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Ellen S. Podgor, White-Collar Crime and the Recession: Was the Chicken or the Egg First?, 2010 U. Chi. Legal F. 205 (2010)Clicking on the button will copy the full recommended citation.
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Linda S. Anderson, Just Because You Want Kids Doesn’t Mean I Can’t Have Them: How Clarifying Definitions of Parent and Procreate Can Prevent the Indefinite Storage of Cryopreserve Embryos, 49 U. Louisville L. Rev. 231 (2010)Clicking on the button will copy the full recommended citation.
Since 1978, when the first “test-tube baby” was born in England, the use of technology to assist with the process of conception has evolved quickly. Today, advances in technology allow the various steps in the process of conception and gestation to be carried out in multiple locations, with multiple contributors to the process, and over an extended period of time. These technological advances call into question many of the assumptions about parenthood and procreation that were indisputable prior to the use of assisted reproductive technology. Courts have attempted to apply the old meanings to questions about the use of new technology, especially with regard to cryopreserved embryos, but admit that they are venturing into uncharted territory. When doing so, they often fall back on language that is familiar, but too imprecise to be helpful. Words like “parent” and “procreate” imply important rights and responsibilities, yet these words never needed defining in the past. Today they do, so this article attempts to re-define these terms by looking at their historical use, new legislation and cases that have tried to clarify them, and the policies behind their regularly-accepted meanings.
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Luz Estella Nagle, Should Terrorism Be Subject to Universal Jurisdiction?, 8 Santa Clara Journal of International Law 87 (2010)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 Chicago-Kent Law Review 77 (2010)Clicking on the button will copy the full recommended citation.
When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this Essay presents a new dimension to this issue - the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling - all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results. The concern here is that innocence or guilt does not always frame the judicial process in white collar cases. The risk of trial becomes so great that in order to minimize the possible consequences, innocence becomes an irrelevancy. Although the plea bargain to trial differential existed for many years in crimes outside the white collar crime context, the high sentences now being given to individuals and entities charged with white collar crimes place these crimes in comparable stead with street crimes. This gives pause to whether the next phase of wrongful convictions might move beyond street crimes into the white collar world.
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Royal C. Gardner, International Environmental Law, 44 Int'l Law. 503 (2010)Clicking on the button will copy the full recommended citation.