David Gelfand: A Tribute Article
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Michèle Alexandre, David Gelfand: A Tribute, 37 Urb. Law. 641 (2005)Clicking on the button will copy the full recommended citation.
Articles
Arthur Andersen, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice? Article
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Ellen S. Podgor, Arthur Andersen, LLP and Martha Stewart: Should Materiality Be an Element of Obstruction of Justice?, 44 Washburn L.J. 583 (2005)Clicking on the button will copy the full recommended citation.
Obstruction of justice, with its many different statutes, is a crime that prosecutors can use with relative ease. It covers a wide breadth of activity and has few limitations. This paper examines the prosecutorial use of obstruction charges in the cases of Martha Stewart and Arthur Andersen, LLP. Although the statutes differed in these two prosecutions, with Arthur Andersen, LLP., prosecuted for the crime of obstruction of justice under 18 U.S.C. Section 1512, and Martha Stewart, prosecuted for several criminal charges including obstruction of justice under 18 U.S.C. Section 1505, both demonstrate how prosecutors can leave unfinished the original activity that was the subject of investigation to proceed with the easier obstruction charge.
This article provides a way to restrict prosecutors in their use of the crime of obstruction of justice when it is used solely for expediency purposes. In essence, it reads in an element of materiality as required for this crime in a manner similar to how the Supreme Court included materiality for fraud prosecutions. By adding an element of materiality as a requirement for an obstruction conviction, prosecutors are forced to complete investigations that can be completed on the substantive charges. In contrast, investigations that cannot continue because the obstructive conduct precludes continuation because of either destruction of evidence or intimidation of witnesses, still have available the ability to appropriately punish the activity via a charge of obstruction of justice.
Foreword, Overcriminalization: The Politics of Crime Article
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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.
Eminent Domain, Property Rights, and the Solution of Representation Reinforcement Article
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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.
Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct? Article
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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.
The Three Levels of Ownership: Rethinking Our Restrictive Homebuilding Laws Article
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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.
Law and the Problem of Pain Article
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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.
Introduction and Commentary: Reflections on and Implications of Schiavo Article
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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.
Controlling Passion: Adultery and the Provocation Defense Article
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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.
Preface: Globalization of Elder Law Article
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Rebecca C. Morgan et al., Preface: Globalization of Elder Law, 1 Journal of International Aging, Law & Policy ix (2005)Clicking on the button will copy the full recommended citation.