By Emily A. Zott*

Every year, thousands of children are born via reproductive cell donors. Many parents find their donors through commercial cryobanks, which maintain catalogs of donors listing endless characteristics and achievements of donors, hoping to entice parents into the selection of one of that cyrobank’s donors. As the popularity of commercial DNA tests skyrockets and the first generation of donor-conceived children enter their mid-adulthood, there are increasing concerns surrounding the representations that these cryobanks made to parents purchasing donor reproductive cells. In describing the donor reproductive cells, cryobanks create express warranties. Gametes, like blood, do not look much like commercial goods, but in applying the legal standards and examining the policy surrounding blood shield statutes, the characterization of gametes as goods becomes clearer. 

This Article identifies the regulatory gaps in the donor conception industry and explores how the characterization of donor gametes as goods under the Uniform Commercial Code can provide donor-conceived families a remedy when cryobanks create warranties and subsequently breach those warranties. Finally, this Article proposes a legislative solution to ensure this remedy is not eliminated through crafty contracting. 

By Christos D. Strubakos*

While the contours of expanding presidential authority are the subject of much scholarship, the source of this expansion remains unexplored from a socio-psychological perspective. Many have approached this topic by analyzing Supreme Court jurisprudence or political dynamics, but few have considered what, if any, socio-psychological forces explain the President’s growing powers. Presidential approval ratings tend to soar following major national events, suggesting a profound psychological relationship between the American people and the President. This Article posits that accumulation of power in the Executive is an inherently psychological phenomenon rooted in human nature and constitutional principles. Although designed to curtail power, shared interests between the government and the people activated psychological forces that incited presidential power to evolve beyond the Constitution’s intent. An analysis of The Federalist papers indicates that the Framers understood these societal mechanisms and collective psychological forces. Moreover, due to heroization of political figures and increasingly diverse interests, the President receives significant public attention, leading to a greater concentration of power. This Article concludes by suggesting that a shift in the psycho-political emphasis from national to local governance will help realign the Framers’ vision of a community of interest between the government and the governed. 

By Amy Bitterman*

Just as fiction writers deliberate over name choice to create an impression about characters, advocates should also carefully consider how they identify clients in legal documents. While attorneys do not have the luxury of making up evocative names, they can decide whether to refer to a client by first name, last name, nickname, or legal status. In so doing, they should bear in mind the effect these choices may have in terms of generating empathy for their client and/or antipathy toward an adversary. For example, consistently referring to parties by title can help persuade a judge or jury that they are entitled to the rights and privileges typically accorded that status. 

Using examples from both literary works, including Alice Walker’s The Color Purple and Honoré de Balzac’s Colonel Chabert, as well as briefs, pleadings, and judicial opinions, such as United States v. Farmer, McFarland v. Miller, and United States. v. Choi, this Article explores the communicative power of: (1) nicknames, (2) first names, (3) gender prefixes, (4) honorifics, and (5) pronouns, and suggests ways counsel can harness this power in court submissions. 

By Rebecca Flanagan*

Law schools have embraced closed-book exams as one response to falling bar passage rates. But due to lack of student expertise in learning and study skills, students focus on memorization as the key to success on closed-book exams. A focus on memorization channels students’ attention away from building higher-order thinking skills, which are skills that must be built over time because they are essential to success on the bar exam and in practice. By choosing limited open-book exams, law professors and law schools minimize the student focus on memorization, and recenter student learning and study on techniques that produce durable learning and proficiency in higher-order thinking skills necessary for success on the bar exam. 

By Jesse J. Richardson, Jr.*

 Since the beginning of the United States, state and local governments have grappled over the division of authority between the two levels of government. The Tenth Amendment of the U.S. Constitution seems to resolve the issue by making states the default holders of power between the state and federal governments, with no mention of local governments. In the mid-1800s, Judge John Forrest Dillion of the Iowa Supreme Court and Justice Thomas Cooley of the Michigan Supreme Court set out apparently opposite propositions. Judge Dillon posited that local governments were mere “creatures of the state” that hold no authority except that which is explicitly granted by the state. Justice Cooley countered that local governments held some inherent self-governance authority. Judge Dillon’s view prevailed in the vast majority of states. 

The debate has escalated in recent years, with many controversial subjects of regulation at issue. Advocates for more local autonomy have been particularly vocal, culminating in a proposal for Principles of Home Rule for the 21st Century by the National League of Cities, advocating for sweeping local autonomy. 

Meanwhile, two relatively rural states, Nevada and West Virginia, implemented home rule programs that offer lessons for state and local policymakers across the country. This Article reviews the history and recent developments of home rule in the United States. The Nevada and West Virginia programs are reviewed in detail. The Author asserts that the West Virginia Home Rule Program offers a model for home rule in the United States, while Nevada’s program proves noteworthy by including counties. The Article concludes with policy recommendations for a practical and meaningful sharing of authority between state and local governments.