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Ellen S. Podgor, Foreword, Overcriminalization: The Politics of Crime, 54 Am. U. L. Rev. 541 (2005)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, Eminent Domain, Property Rights, and the Solution of Representation Reinforcement, 83 Denver University Law Review 1 (2005)Clicking on the button will copy the full recommended citation.
Courts at both the federal and state level are busy remaking the law of eminent domain, most notably in the controversial Kelo decision. Property rights advocates argue that courts should scrutinize more closely government's ability to take property with plans to transfer it to private developers. But asking courts to second-guess the wisdom of governmental policy decisions cannot be a workable solution. Instead, eminent domain could be tightened by relying on the idea of representation reinforcement, through which courts boost the interests of those groups who are unlikely to have their voices heard in the political realm. Across the nation, local governments are using eminent domain to discourage residency by poor persons. This article proposes that eminent domain be constitutionally impermissible when it is both used to take land destined for private hands and disproportionately hurts the poor or politically disadvantaged.
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Ellen S. Podgor, Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct?, 109 Penn St. L. Rev. 1059 (2005)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, The Three Levels of Ownership: Rethinking Our Restrictive Homebuilding Laws, 37 Urb. Law. 385 (2005)Clicking on the button will copy the full recommended citation.
This essay identifies "three levels of ownership" of land – private ownership, local ownership, and global ownership. American law has placed great emphasis on a supposed clash between the first two, as local governments attempt to regulate against the wishes of private owners. But recent political and economic research highlights the extent to which homeowners use local law to benefit their interests at the expense of outsiders, including potential migrants. A greater emphasis on global ownership, perhaps paired with private ownership, would lessen the adverse impact of this local protectionism.
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Michael S. Finch, Law and the Problem of Pain, 74 U. Cin. L. Rev. 285 (2005)Clicking on the button will copy the full recommended citation.
This Article examines the problem of enigmatic chronic pain. The principal contention is that psychosomatic explanations of chronic pain are flawed, despite their inordinate popularity with social critics, expert witnesses, and a growing number of judges. There is little empirical evidence to support the view that chronic pain is principally a symptom of psychic conflict and distress, and much evidence to rebut it. Most compelling is the emerging biological evidence demonstrating that much chronic pain results from pathology in the central nervous system, rather than discrete injury or illness like that which produces acute pain.
The problem of chronic pain is examined by focusing on the most prevalent chronic pain syndrome found in litigation today, fibromyalgia. Fibromyalgia is nothing less than the widespread pain of rheumatism that has distressed humanity throughout recorded history. This pain syndrome has been described as one of the "most controversial conditions in the history of medicine," and it is at the center of the debate about the nature of chronic pain. Part II begins by examining how chronic pain often straddles competing diagnoses in medicine and psychiatry, thus lending credibility to both organic and psychogenic concepts of pain. Part III then examines how the concept of psychosomatic pain or "somatization" has attained prominence in cultural history and critical medical literature. Although the concept of somatization does not intrinsically disparage chronic pain, it has acquired a distinct secondary meaning - that pain symptoms are exaggerated or feigned and, ultimately, within the control of the sufferer. Segments of the insurance and health care industries have now appropriated the theme of somatization to minimize the chronic pain experience and control health care costs.
Part IV next assesses empirical research concerning the role of psychological distress in the generation of chronic pain. As demonstrated, there is widespread acceptance that psychological factors play a role in the pain process. But research does not support the much broader claim that chronic pain syndromes are largely the consequence of psychological distress. The neo-Freudian concept of somatization has been greatly oversold and is driven more by theory than scientific evidence.
Finally, Part V examines the developing biological model of chronic pain. A compelling body of evidence now demonstrates that the acute-pain model still dominant in medical practice and the law is incomplete. There is growing recognition that the central nervous system is far more plastic than previously imagined. In an appreciable segment of the population the central mechanisms governing pain can be fundamentally altered, resulting in the persistent production of pain with no discernible relationship to bodily injury or illness. These central mechanisms, rather than mental disturbances, dispel the enigma of much chronic pain.
Part VI concludes that, somewhat remarkably, while a fundamental reassessment of chronic pain has occurred in the scientific literature, this reassessment has gone unnoticed in the law. Until courts rethink the prevailing model of pain and its mechanisms, chronic pain will remain a stubborn mystery, and its sufferers will remain under suspicion as latter-day hysterics and malingerers.
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Rebecca C. Morgan and Michael P. Allen, Introduction and Commentary: Reflections on and Implications of Schiavo, 35 Stetson L. Rev. 1 (2005)Clicking on the button will copy the full recommended citation.
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Susan D. Rozelle, Controlling Passion: Adultery and the Provocation Defense, 37 Rutgers Law Journal 197 (2005)Clicking on the button will copy the full recommended citation.
Adulterous wives, especially those caught in the act, are classically provoking. Conventional wisdom explains that the ordinary, reasonable, otherwise law-abiding person cannot be expected to control himself when faced with an actively faithless spouse - or at least, control becomes so hard to maintain that a defendant who kills under those circumstances may be partially excused. But the conventional wisdom is wrong: most people can control themselves under such circumstances. Instead, provocation is properly grounded in justification, and should be permitted only to those defendants who were legally entitled to use some amount of force when they killed.
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Peter Lake, Private Law Continues to Come to Campus: Rights and Responsibilities Revisited, 31 J.C. & U.L. 621 (2005)Clicking on the button will copy the full recommended citation.
This article provides an update to the 1999 book, Rights and Responsibilities of the Modern University: Who Assumes the Risk of College Life, co-authored by Stetson law professors Robert D. Bickel and Peter Lake.
The article discusses cases decided since 1999 that deal with central issues of legal duty. The major focus of Rights and Responsibilities was describing the evolution of the law of legal duty in higher education. It has become apparent that the most significant cases in this regard are those involving student alcohol use. Rights and Responsibilities was not a book devoted to college alcohol issues, as such. Yet, it is increasingly apparent that the battleground over competing visions of the modern university is the high-risk alcohol culture and its epidemic primary and secondary effects. Litigation over injuries fueled by alcohol drive college and university safety law today. Many of the recent alcohol cases involve Greek organizations. Courts continue to hold Greek organizations responsible for foreseeable danger to members and others. There are also some significant cases that do not involve alcohol and are relevant to issues of duty and reasonable care in higher education law. Importantly, as No-duty arguments begin to fail in court, it is increasingly necessary for college and university lawyers to turn to other arguments such as causation and plaintiff fault to manage the litigation boom.
Part II discusses some future trends. First, the article briefly discusses the continuing rise of risk management cultures at colleges and universities in recent times. Rights and Responsibilities did not cause the rise in risk management cultures; yet, there is a profound inter-relationship between the book and the continued development and refinement of the concept of college risk management. The modern college or university now attends to foreseeable risks as a matter of good business, not just for litigation avoidance.
Part II also discusses the need for further development of the facilitator model as set out in Rights and Responsibilities. With the benefit of hindsight, it is clearer than ever that Rights and Responsibilities and the facilitator model require further development in at least two areas. One area concerns student process systems. Today, safety is intimately connected to the efficacy of student process systems. These systems are failing and need attention. Additionally, Rights and Responsibilities and its facilitator model were deeply animated by active risks posed to students by the students' own behavior, the behavior of other students, and non-students; and to a lesser extent, passive risks created by conditions on or near campus. Although Rights and Responsibilities did attend to some wellness issues, it did not focus upon the ever-growing range of student wellness issues including student suicide, depression, anxiety, cutting, etc. We are now on the leading edge of a new generational set of student concerns. There will be a rise in concern for - and thus ultimately litigation over - issues related to student wellness. The future of the facilitator model depends on attending to these new risks.
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Theresa J. Pulley Radwan, No Harm, No Foul: Calculation of Nondischargeable Damages in Transactions Tainted by Fraud, 58 SMU L. Rev. 1385 (2005)Clicking on the button will copy the full recommended citation.
Section 523(a)(2)(B) of the United States Bankruptcy Code provides that a debt incurred as a result of written fraud cannot be discharged by a bankruptcy proceeding. Though section 523(a)(2)(B) provides elements of this nondischargeable fraud, one common element of fraud is conspicuously missing from this list-damages incurred as a result of the fraud. Whether damages must be shown in order to prevent discharge of a written fraud debt has been debated by courts under both the Bankruptcy Act and Code. However, despite numerous revisions to the bankruptcy laws, the need (or lack thereof) for damages remains unclear. In this article, the author suggests that preventing a discharge on the basis of fraud without requiring damages causes a windfall to the "defrauded" creditor. The author also suggests a mechanism for calculating such damages to ensure an equitable balance between the debtor and creditor in a bankruptcy proceeding, utilizing a tort-based calculation of damages.
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Louis J. Virelli, Don’t Ask, Don’t Tell, Don’t Work: The Discriminatory Effect of Veterans’ Preferences on Homosexuals, 38 John Marshall Law Review 1083 (2005)Clicking on the button will copy the full recommended citation.