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Kristen D.A. Carpenter, Promise Enforcement in Public Housing: Lessons from Rousseau and Hundertwasser, 76 Tul. L. Rev. 1073 (2002)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, Understanding “Take” in the Endangered Species Act, 34 Ariz. St. L.J. 733 (2002)Clicking on the button will copy the full recommended citation.
The prohibition against “take” of endangered species would appear, at first blush, to be the most powerful protection of the federal Endangered Species Act. But the provision has not met its potential, the article argues, in part because its parameters remain fuzzy. This article examines the parameters of intent, directness, timing, proximate causation, and standard of proof. This examination reveals a prohibition that holds its greatest potential as a means of enjoining an impending harm to a species.
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James W. Fox, Re-Readings and Misreadings: Slaughter-House, Privileges or Immunities, and Section Five Enforcement Powers, 91 Ky. L.J. 67 (2002)Clicking on the button will copy the full recommended citation.
This Article wears two hats: on the one hand it responds to recent revisionist re-readings of Justice Miller's opinion in the Slaughter-House Cases, and on the other hand it seeks a historical connection between two areas of Fourteenth Amendment jurisprudence invigorated by recent Supreme Court decisions. On the latter point I argue that the historical background of the framing and early application of the Fourteenth Amendment reveals an intimate and essential connection between the proper interpretation of the Privileges or Immunities Clause (an issue hinted at by the Court in Saenz v. Roe) and congressional enforcement powers under Section Five (an issue actively addressed by the Court in City of Boerne and its progeny).
The Article's architecture is as follows: Part One critiques the Slaughter-House revisionists, arguing that they provide an overly charitable reading of Justice Miller's opinion on the question of the incorporation of the Bill of Rights. Part Two explores the historical evidence from congressional debates about the Amendment and simultaneous congressional legislation such as the Civil Rights Act of 1866 and the Freedman's Bureau Act and then critiques the revisionists' implicit adoption of Miller's anti-natural rights interpretation of federal citizenship privileges. Part Three develops the idea of the congressional power of interpretive enforcement of the Privileges and Immunities Clause, primarily through a close reading of some of the congressional actions throughout Reconstruction, including the Anti-Peonage Act, the Enforcement (Anti-Klan) Act of 1871 and the Civil Rights Act of 1875. This Part argues that Congress took a fairly broad view of the Privileges or Immunities Clause and its own powers prior to the Supreme Court's decision in Slaughter-House, and that Slaughter-House re-directed congressional discourse away from a more expansive, fundamental rights interpretation of the Clause and toward a more constrained equality-of-rights interpretation. Finally, Part Four discusses the final blow to congressional development of the Privileges or Immunities Clause, the Civil Rights Cases.
This Article suggests that if it is true that Congress should play an important role in developing the contours of the Privileges or Immunities Clause, then actions by Congress which are based on its understanding of the Clause should be accorded more deference than currently granted by Court. By re-uniting the historical understandings of the Privileges or Immunities Clause and the Enforcement Clause modern interpreters might find a plausible but overlooked constitutional basis for congressional actions to protect the rights of groups such as women, the disabled, and religious minorities.
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Cynthia Hawkins DeBose, The Transracial Adoption Debate: Counseling and Legal Implications, 80 Journal of Counseling & Development 433 (2002)Clicking on the button will copy the full recommended citation.
The overarching theme of this inter-disciplinary article is to present and clarify issues pertaining to the adoption of African American children by White American parents. More specifically, the purposes of this article are: to review relevant literature and research regarding the transracial adoption debate; explain the legal aspects and practice of transracial adoption; and discuss the implications for counseling practice and potential implications or concerns for counselors.
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Ellen S. Podgor, Book Review, The International Dimensions of Cyberspace Law, 12 International Criminal Justice Review 122 (2002)Clicking on the button will copy the full recommended citation.
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Michael S. Finch, Giving Full Faith and Credit to Punitive Damages Awards: Will Florida Rule the Nation?, 86 Minn. L. Rev. 497 (2002)Clicking on the button will copy the full recommended citation.
This Article considers the constitutional status of state punitive damage judgments and the particular obligation that sister-states have to enforce them. Part I considers the legality of measures recently enacted by the tobacco companies' home states to delay enforcement of the judgment in Engle. This discussion will show that, contrary to the public protestations of many legal scholars, those states properly exercised their authority under the Full Faith and Credit Clause of the Constitution when they acted to defer enforcement of the Engle judgment while it is appealed through the Florida courts.
Part II of this Article considers whether there is any obligation under the Full Faith and Credit Clause to enforce sister-state judgments for punitive damages. According to Supreme Court precedent dating back to the nineteenth century, "penal" judgments are not entitled to full faith and credit. While the penal judgment rule has not seen great service in recent decades, its reexamination is timely. First, there is widespread agreement that modern punitive damages awards no longer serve the compensatory purposes they served at the time the Full Faith and Credit Clause was ratified: Punitive damages now serve the quasi-criminal purposes of deterrence and punishment, and are therefore penal in nature. Second, an increasing number of states have reaffirmed the penal role of punitive damages by appropriating a share of the plaintiff's punitive award. Such shared recovery laws emphasize that punitive awards now vindicate "public wrongs," and so fulfill the historical purpose of penal laws.
This Article contends, however, that the penal judgment rule should not be extended to permit the denial of full faith and credit to judgments for punitive damages. Notwithstanding the linguistic similarity in the epithets penal judgments and punitive damages, the concepts address quite different concerns. Further, application of the penal judgment rule to punitive damages awards would serve no state or litigant interest not already addressed by other constitutional provisions - particularly the Due Process Clause. For these reasons, courts should not revivify the penal judgment rule to address contemporary problems posed by punitive damages awards.
This Article concludes that the Constitution offers defendants who suffer the imposition of catastrophic verdicts like that in Engle a measure of protection. States may, and after Engle should, eliminate appellate bond requirements for punitive awards when there is no reason to suspect that the judgment debtor will intentionally dissipate its assets. This approach will leave intact appellate bond requirements for compensatory damages, and thus secure the judgment creditor's right to be made whole for his losses. At the same time, judgment debtors need not face the prospect of bankruptcy, or exorbitant settlement, simply because they cannot post security for an aberrant, punitive verdict like that in Engle. The Supreme Court has emphasized the critical role of appellate courts in policing unconstitutionally excessive punitive verdicts, and that role can only be fulfilled if the appellate process is affordable.
Realistic appellate bond requirements, however, are only part of the solution. Engle sounds a grave warning. The current system of tort law increasingly "commits the fate of an entire industry or, indeed, the fate of a class of millions, to a single jury."The constellation of interests affected by mass tort litigation--injured persons, consumers, states, national industries, and local economies - exceeds the competence of a single jury or single state court to resolve. A national solution is needed, and by default the task of devising that solution falls on Congress.
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Ellen S. Podgor, International Computer Fraud: A Paradigm for Limiting National Jurisdiction, 35 U.C. Davis L. Rev. 267 (2002)Clicking on the button will copy the full recommended citation.
Should the United States prosecute computer fraud crimes that occur extraterritorially? This Article examines traditional methods used to determine whether jurisdiction is appropriate for prosecution of criminal conduct that occurs outside the United States. Focusing specifically on computer fraud crimes, the question becomes whether traditional methodologies should remain applicable in light of the ease of use and worldwide accessibility of computers. Although the Article discusses some of the ongoing international discussions related to jurisdiction of computer crimes, it focuses on national issues that can remain irrespective of the adoption of international treaties. This Article stresses the importance of tempering prosecution of extraterritorial computer fraud acts.
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Ann Piccard, Tick, Tick, Tick . . . The Electoral College, a Ticking Time Bomb, 5 Richmond Journal of Law and the Public Interest 34 (2002)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, International Assistance, Sustainable Development, and the War on Terrorism, 32 Envtl. L. Reporter 10681 (2002)Clicking on the button will copy the full recommended citation.
This article discusses the relationship between international assistance and in particular official development assistance (ODA) and sustainable development. The article then reviews why the United States ought to provide international assistance for sustainable development. Then it examines the level of U.S. ODA, prior to the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janiero and post-Rio, and compares U.S. actions with those of other nations. The article concludes with the recommendations for the United States and for the World Summit on Sustainable Development in Johannesburg.
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Ellen S. Podgor, Computer Crimes and the USA PATRIOT Act, 17 Criminal Justice 61 (2002)Clicking on the button will copy the full recommended citation.