"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because he lived in a fictional world where virtually no one understood the nature and severity of his intellectual disability, and thus people were predisposed to believe that Lennie was a cold-blooded murderer who deserved the ultimate punishment. But how would Lennie fare today--not in Steinbeck's fictional Depression-era America, but in the twenty-first century and in our current criminal justice system? Is the criminal justice system equipped to fairly treat mentally retarded defendants in the quest for "truth"? In this article we have argued for a number of procedural protections to safeguard mentally retarded defendants against the heightened risk of wrongful conviction, i.e., providing counsel or an advocate with training in mental retardation, creating safeguards against the admissibility of false confessions, assuring the reliability of informant and codefendant testimony, informing the jury of the heightened risk of error and altering current burdens of proof. We have elected to sketch several procedural protections rather than defend one or another as the most crucial. For any criminal justice system committed to protecting the Lennies of the world against the heigbtened risk of being found guilty of crimes they did not commit, these procedures are a necessary beginning.
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Criminal Law and Evidence
Occupational and Professional Licensing Regulation
The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can be found in courts' historical treatment of the false-marking statute, the legislative history and policy rationales underlying § 292, and analogous legal contexts. More crucially, the Due Process Clause of the Fifth Amendment mandates a higher burden of proof to protect the important interests at stake for false-marking defendants.
Bankruptcy proceedings tend to involve civil disputes where nothing more than money is at stake. In such instances, the application of the preponderance-of-the-evidence standard of proof offers the greatest utility and is aligned with the comparatively minimal importance society places on purely monetary disputes. However, bankruptcy courts are not viewed as typical civil courts. Rather, many view these courts as “courts of equity” and this perception serves as a crutch which many bankruptcy judges use in advocating the application of the clear-and-convincing standard of proof to customary civil disputes. These actions distort the accepted risk allocation schemes implicit in standards of proof; the consequence of which often is inequitable results. A lack of direction by the Supreme Court is a key factor in this process failure. The Court has addressed the application of standards of proof infrequently and, when it has, the holding has been narrowly tailored. In 1990, the Court issued a ruling in Grogan v. Garner, 498 U.S. 279 (1991), that appeared to provide guidance. Unfortunately, as of late, the ruling has been misinterpreted by a number of courts and has led to additional confusion on an issue that was already elusive. In my article, I propose a new, comprehensive normative approach to determine which standard of proof is applicable in disputes involving debtors in possession under the Bankruptcy Code. My approach is based on a coextensive reading of applicable Supreme Court precedent that honors the narrow basis on which many of these rulings are made. I urge use of an approach that will engender greater uniformity on this fundamental issue. Further, I analyze some key forms of relief available under the Bankruptcy Code in which courts have advocated the application of the clear-and-convincing standard of proof but failed to provide any explanation for this action. By applying my approach, I evaluate bankruptcy case law and isolate instances where bankruptcy courts impermissibly distort accepted risk allocation schemes. Finally, I attempt to show that some unexplained applications of the clear-and-convincing standard of proof are justified.
The first section of this paper discusses the scope and nature of the familial rights at stake in a termination of parental rights action. This section demonstrates that familial rights are defined as relational rights throughout our Anglo American tradition and constitutional jurisprudence and thus protect the relationship between the parent and child rather than an individual right of either. The second section of this paper establishes that life is a which, like culture viewed on any scale, shares learned behavior among members and functions as a means of protecting the group and insuring the continuity of its values, beliefs and organization. This section describes United States Supreme Court decisions which expressly protect the familial activities constituting and reflecting the private culture of the family. In view of the United States Supreme Court's recognitions of private culture, this second section concludes by suggesting that a family's private culture is entitled to the same deference accorded to larger cultural groups in other contexts. Taken together, then, the first and second section stand for the proposition that the proper inquiry is never whether removal from parental custody is in the child's best interest but rather whether a family exists, in the constitutional sense. If a exists, the inquiry must end. There should be no inquiry into whether the child's emotional needs are fully met, whether some future likelihood of harm exists or whether it would be better for the child to spend some time with grandmother, or indeed with anyone else. The state is neither permitted to evaluate the of a functioning nor, as an impersonal political institution is it qualified to do so.The third section of this paper provides a selective overview of termination of parental right statutes focusing on recent trends which have increased the incidence of both procedural and substantive due process problems within the statutes. This third section also describes Congress' own, quite different response to some of the criticism of child welfare legislation, a response which is embodied in the Indian Child Welfare Act (hereinafter ICWA). The third section concludes by proposing a more constitutionally acceptable approach to child welfare legislation utilizing the general principles embodied in the ICWA.The fourth and final section of this paper argues that the appropriate burden of proof to place on state actions to remove a child from his or her parents' custody or to terminate parental rights to the child is proof beyond a reasonable doubt. The ICWA requires proof beyond a reasonable doubt in termination of parental rights actions falling within its jurisdiction; the principles Congress endorsed in enacting the ICWA should be applied to all families. This paper reaches this conclusion despite Santosky v. Kramer's apparently different resolution of the issue of the burden of proof required in parental termination actions.
Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful.\nStates currently have widely varying means of adjudicating child custody disputes between parents and third parties. One Supreme Court case, Troxel v. Granville, addresses contests between parents and third parties. While Troxel ruled for the parent in that particular case, it neither represents a strong parents’ rights opinion nor does it provide states with clear guidance on how to shape third party custody statutes. This Article argues that states should enact child custody statutes according to three primary points. First, due to the wide range of situations in which a third party custody order may be necessary, states should permit a broad set of individuals to seek custody. Concerns that broad standing provisions would lead to a flood of meritless lawsuits are not borne out by actual data in states that have had nearly unlimited standing. Second, recognizing the constitutional primacy of the parent-child relationship, states should hold third parties to a high substantive standard, and require them to prove that parental custody would harm the child in some way. Any lesser standard — such as the best interests of the child standard applied in some states — insufficiently protects relationships between parents and children. Third, recognizing that the core parental right of the “care, custody and control” of a child is at stake, states should generally hold third parties to a clear and convincing burden of proof. Most states apply a preponderance burden or have not specified a burden. One exception should apply: When a third party has acted as a parent for a significant time and a child’s birth parent has not done so, then that parent’s constitutional rights are diminished, society’s interest in maintaining the long-term bond between the child and third party is enhanced, and a lower burden of proof should apply.
This Article explores, and ultimately embraces, a new exception to the complete diversity rule in removal cases: the doctrine of procedural misjoinder. We argue that the doctrine offers federal courts a vital tool with which to police joinder gamesmanship. Absent this power, plaintiffs may preclude defendant access to federal courts by the relatively simple expedient of joining in state court largely unrelated claims against or on behalf of non-diverse parties. The resulting lawsuit thus fails the complete diversity test, rendering such cases removal-proof. Like fraudulent joinder, the long-standing practice of ignoring non-diverse parties against whom no valid claim may be asserted, the doctrine of procedural misjoinder would permit federal courts to disregard any diversity-destroying parties who have been improperly added to the state lawsuit. Because access to federal courts is at stake, we believe federal courts should adopt this new doctrine, applying federal joinder standards to test the legitimacy of plaintiffs’ party alignments before denying removal jurisdiction.
In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the margin of litigation, and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.The bad news from the story of Election 2004 is that things likely won't get better in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administrationSecond, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.
In his decade-long exploration of female sexuality, Sigmund Freud professed to be on a mission to answer the elusive question: What do women want? Unfortunately, the 19th-century psychiatrist was unable to separate that question from the one he ultimately answered: What do men want women to want? In some sense, Freud's inquiries provide an apt metaphor for the medical profession's stance toward female experience. When confronted with the difference presented by the female body as well as women's unique life experiences, the medical field has responded with approaches that range from bemusement to hostility to intense indifference. Although the pernicious effect of gender bias on healthcare delivery is well-known, less attention has been paid to its secondary effects. Disinterest in or hostility to the female experience leads to an informational vacuum that allows for the development of ideas, theories, and assumptions founded on cognitive bias, rationalization, and wishful thinking rather than empirically-based knowledge. These biases, then, are imported into the legal field where they undergird juridical movements that serve to disadvantage women. This essay explores how, in the medical context, the stunted development of knowledge about women, becomes, in the legal context, a dangerous thing. In examining the interplay between medical and social science information and legal dogma, this essay will discuss how bodies of knowledge are selectively pursued, exploited, or ignored in the service of patriarchal assumptions that achieve expression in legal responses to emerging social dilemmas. Selective information flows between the medical and legal professions result in untoward consequences in a wide variety of settings. Here, we limit our focus to two such untoward consequences. The first part of the essay discusses the impoverished medical discourse on female sexuality and how inattention to female sexual fulfillment has led to legal rules that disproportionately affect women's expression as sexual beings. The second part examines available social science data detailing the distinction between psychological and genetic parenthood and shows how that data has been ignored in favor of judicial presumptions that privilege men and disadvantage women in disputes over frozen embryos. A close look at these contested arenas of sexuality and reproduction demonstrates the difficulty of charting women's progress toward equality. On the surface, in both law and medicine, norms of gender equity command facial allegiance. Medicine disavows its earlier efforts to exclude women from the profession, while law proffers the equal protection doctrine as proof that sexist behavior can be rooted out in a zero-tolerance legal culture. Under the waterline, though, unconscious beliefs and stereotypes hold sway. These unruly currents lead to rationalizations and cognitive errors that elude rigorous examination, but affect women at work, at home, and in the bedroom.
Eric K. Yamamoto, Susan K. Serrano, Michelle Natividad Rodriguez
Much has been written recently on African American reparations and reparations movements worldwide, both in the popular press and scholarly publications. Indeed, the expanding volume of writing underscores the impact on the public psyche of movements for reparations for historic injustice. Some of that writing has highlighted the legal obstacles faced by proponents of reparations lawsuits, particularly a judicial system that focuses on individual (and not group-based) claims and tends to squeeze even major social controversies into the narrow litigative paradigm of a two-person auto collision (requiring proof of standing, duty, breach, causation, and direct injury). Other writings detail the new research uncovering business and public institutional profiteering on the slave economy--banks, railroads, insurers, and universities. Still other studies document African American social conditions and the persistence of subtle yet invidious discrimination against people of color and especially African Americans. This Essay does not retrace this terrain. Nor does it offer an in-depth study of reparations dynamics in specific cases.
Rather the Essay examines the ongoing and impending African American reparations suits and frames in larger terms what may well be at stake in this forthcoming epochal trial of American Racial Justice. In particular, the Essay draws linkages among African American redress claims, the United States' approach to international human rights and America's moral authority to fight its preemptive “war on Terror.” Drawing upon and extending Professor Derrick Bell's interest-convergence thesis and Professor Mary Dudziak's ensuing research into the international underpinnings of Brown v. Board of Education, the Essay offers insights into what the future might be, here and in the eyes of worldwide communities, depending on what choices we in America make about African American justice claims and human rights.
In Inside Appellate Courts: The Impact of Court Organization on Judicial Decision Making in The United States Courts of Appeals (Michigan 2002), Jonathan Matthew Cohen, a sociologist and practicing attorney, asks a question that has received scant attention in the academic commentary on appellate judging: If we accept the dominant conception of appellate court judging as a process of atomistic contemplation, how do federal circuit court judges continue to maintain high quality opinions in the face of pervasively growing judicial dockets? Cohen advances the provocative thesis that increasing workloads have not prevented appellate judges from producing high quality outputs, but rather, that the dominant image of appellate judging as an isolated contemplative task is conceptually flawed. A better approach, Cohen argues, is to compare the task of appellate court judging to production within a multi-divisional private firm. While Cohen recognizes the inherent limits of his analogy, and in particular, that unlike private firms, circuit courts lack a central coordinating authority, he nonetheless contends that it is more fruitful to consider the judges in the manner of workers in a complex organization than as autonomous actors reflecting in isolation on the legal issues presented on appeal. In this review essay, Stearns considers three complementary methodologies for analyzing appellate courts that yield insights of particular interest to lawyers and legal scholars. Such questions include how appellate courts transform preferences into doctrine; the nature of cases that are likely susceptible to further appellate process through en banc, mini-en banc, or Supreme Court review; and how best to evaluate appellate court opinions. While organizational theory provides a useful starting point, Stearns contends that insights drawn from other methodologies, including economics (demonstrating how decentralized informational processes can provide more meaningful data), probability analysis (demonstrating the quality of data drawn from subsets of a larger group), and social choice (demonstrating the nature and limits of group decision making), might prove more fruitful in evaluating at least some of these questions. Stearns concludes that a comprehensive understanding of federal appellate judging requires not only an understanding of the circuit courts' internal organizational structure, but also an analysis of the edifice of circuit court decision making from inside and out.
TABLE OF CONTENTS INTRODUCTION I. SCOPE OF REVIEW A. The Art of Scope of Review B. The Administrative Procedure Act as a Guide C. Congressionally Defined Scope of Review Standards D. Unpredictability of Reversal Rates II. THE SUPREME COURT BELIEVES THESE WORDS MATTER A. Contrasting the Outcome Effect of Standards of Proof B. Standards of Proof and Scope of Review Compared C. Scope of Review in Other Settings III. SCOPE OF REVIEW IN CONTEXT: SOCIAL SECURITY DISABILITY, VETERANS DISABILITY, AND THE FREEDOM OF INFORMATION ACT A. Social Security Administration Disability Cases B. Veterans Disability Claims C. Freedom of Information Act Cases 1. The Special Case of Exemption 1 2. Judicial Views About Freedom of Information Act 3. Comparison to Reverse-Freedom of Information Act Cases D. Summary IV. JUDICIAL REVIEW OF SENTENCING DECISIONS V. LESSONS IN SCOPE OF REVIEW FOR THE SUPREME COURT AND CONGRESS A. Reassessing Social Security Administration Disability Review 1. The Supreme Court's Role: Tinkering with the Substantial Evidence Test 2. The Role of Congress: Changing the Structure of Review 3. Role of the Agency: Managing, Not Dictating, Outcomes B. Reassessing Freedom of Information Act Review 1. The Supreme Court's Role in Setting the Tone 2. Congressional Alternatives 3. Role of Agencies and the Department of Justice in Freedom of Information Act Review CONCLUSION APPENDIX A APPENDIX B Under existing standards, then, the courts may narrow their review to satisfy the demands for administrative discretion, and they may broaden it close to the point of substituting their judgment for that of the administrative agency. (1) After fifty years ... we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny. (2) INTRODUCTION The purpose of calibrating the breadth--or scope--of judicial review over fact finding by administrative agencies is ultimately to allocate decision-making responsibility between the executive and judicial branches. Because Congress usually makes these decisions, all three branches have a stake in the process. In assigning oversight responsibilities, Congress makes a choice: it weighs the desire for efficient and timely agency action against the need to ensure consistent and fair decision making. In balancing these considerations, Congress intends factual support for agency decisions to be subject to varying levels of scrutiny or, on occasion, to be free from scrutiny. (3) Straightforward enough, one would think. Yet, as the introductory quotes suggest, after all these years, reviewing judges are still struggling to make sense of these standards, especially as they apply to scope of review of facts or of law and policy. (4) I. SCOPE OF REVIEW It is doubtful that Congress wants scope of review to be an irrelevant labeling exercise. Instead, one might reasonably expect that Congress wants outcomes, defined in terms of affirmances, remands, and reversals of agency actions, to vary according to the scope of review standard chosen (or at least to find some judicial recognition of these expectations). But it seems the question is rarely asked and its premise remains unexamined. To explore the relationship of to standards, this Article makes a preliminary attempt to measure against the relevant scope of review provisions. This outcomes analysis produces some intriguing correlations between results and formulas, along with some surprises that themselves serve to raise more questions. Although such an exercise can never produce total agreement about how scope of review standards should operate, it facilitates a better understanding of why Congress differentiates among these standards and why the lesson sometimes is lost on the courts. …
INTRODUCTION The Constitution requires that prosecutors prove a reasonable every element that constitutes the crime charged against a criminal defendant.1For many years, legislatures have sidestepped this constitutional requirement by denying that certain aspects of a crime are elements. Legislatures have instead labeled these aspects defenses2 or presumptions3 and thus transferred to the defendant the burden of proving their presence or absence. More recently, state legislatures and Congress have used the term factors4 to shift fact-finding responsibility regarding certain aspects of a crime from the jury to the judge, effectively lowering the required standard of proof from beyond reasonable doubt to preponderance of evidence.5 The Supreme Court has struck down some of these constructions as violating the criminal defendant's constitutional rights,6 and has upheld others.7 Until recently, however, the Court had not offered a clear rule or principle by which legislatures and lower courts could evaluate these criminal statutes.8 In Apprendi v. New Jersey,9 the Court announced such a rule: is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof a reasonable doubt.10 Apprendi is the most definitive statement in a quarter-century of Supreme Court decisions11 assessing the limits on a legislature's authority to define criminal offenses in ways that circumvent the constitutional protections guaranteed to criminal defendants. This Comment defines the issues at stake in this series of decisions and discusses how the Court's analysis has shifted, especially over the course of the four most recent decisions.12 This Comment contends that the majority's analysis in Apprendi should prompt reconsideration of the constitutionality of statutes that impose mandatory minimum sentences based on factors not submitted to the jury or proven a reasonable doubt.13 Part I presents several key decisions in the last quarter-century in which the Court has considered challenges to legislatures' definitions of criminal elements. Subpart A discusses the Maine statute at issue in Mullaney v. Wilbur, the analysis used by the Court to evaluate the constitutionality of the statute's rebuttable presumption of malice aforethought, and the guiding principle that emerged from the decision. Subpart B describes the statute at issue in Patterson v. New York and the distinctions the Court drew between the affirmative defense requirement in Patterson and the rebuttable presumption in Mullaney. It concludes that, although the effect of the two statutes was similar, the principle derived from Mullaney logically led the Court to reach a different result on the constitutionality of the statute in Patterson. Subparts C and D present, respectively, the mandatory minimum sentencing statutes at issue in McMillan v. Pennsylvania and Almendarez-- Torres v. United States, and discuss how the focus of the Court's analysis shifted from the legislature's authority to define proscribed activity to its role in determining how the proscribed activity should be evaluated. Subpart E describes the Court's reinterpretation in Jones v. United States of the rule articulated in Almendarez-Torres, and presents the language in Jones that foreshadowed the coming shift in the Court's analysis of sentencing factors. Finally, Subpart F discusses the enhancement statute at issue in Apprendi, and shows how the Court analyzed the statute's purpose and effect to conclude that it infringed on the defendant's constitutional right to trial by jury and proof reasonable of the elements of the offense. Part II compares the analysis and guiding principle of Apprendi to those of the other cases discussed in Part I, and concludes that the analysis in Apprendi should be followed in the future. …
Probably not, if the motion is supported by a showing of the categories of witnesses not subject to process and the problems of inconvenience IN CLASSIC forum non conveniens cases, plaintiffs file actions in forums in which they are not residents, where most--if not all--of the events and giving rise to the action did not occur, and (it's not surprising) where the bulk of the evidence relevant to the case is not located. The typical motive is the opportunity to win a damages award that would be unavailable in forums where the action logically should have been brought. Jurisdiction often is based on the defendant's residence in the forum where the case is filed or the fact that at least some of the pertinent events occurred there. While a motion to dismiss under the doctrine of forum non conveniens requires a court to examine and balance a number of different one factor--the availability of compulsory process for the attendance of unwilling witnesses--may require the defendant to do the impossible. That impossibility is obtaining the cooperation of an unwilling witness to prove that the witness is unwilling to participate voluntarily in litigation in a forum where the witness is not subject to compulsory process. WHAT IS IT? The doctrine of forum non conveniens vests a trial court with discretionary power to decline jurisdiction of a matter when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum. When the court is asked to decide whether to dismiss an action for forum non conveniens, it engages in a two-step process. First, it must determine that an alternative forum exists. Second, it must weigh and balance the and interests. A. Adequate Alternative Forum An alternative forum will be held inadequate only in those rare circumstances where it is so clearly ... unsatisfactory that it is no remedy at all, the U.S. Supreme Court declared in Piper Aircraft Co. v. Reyno.(1) The substantive law of the foreign forum is presumed adequate unless the plaintiff makes some showing to the contrary or it is plainly obvious to the court that the plaintiff is highly unlikely to obtain basic justice in the foreign forum.(2) B. Private and Public Interests Once it is established that an alternative forum exists, the next step is to weigh and balance the and interest factors at stake. In Gulf Oil Corp. v. Gilbert,(3) the U.S. Supreme Court enumerated two sets of factors. The first set, called the private interest factors, relates to the convenience of the litigants and includes the following: * The relative ease of access to sources of proof; * The availability of compulsory process for attendance of unwilling witnesses; * The cost of obtaining attendance of willing witnesses; * The possibility of viewing the premises, if such viewing is appropriate to the action; and * All other factors which make trial of a case easy, expeditious and inexpensive. The second set of called the public interest factors, includes the following: * The administrative difficulty encountered when litigation pends for protracted time periods in congested centers rather than being handled at its origin; * The imposition of jury duty on people in a community having no relation to the litigation; * The local interest of having localized controversies decided at the location giving rise to the dispute; and * The bias in favor of having disputes with local interest decided within the jurisdiction having the greater interest in the eventual outcome of the controversy. These factors are not intended to provide bright-line rules. Rather, according to Gulf Oil, they are to serve as aids to the court in making a determination as to whether a discretionary declination of jurisdiction is appropriate. …
On Taking Substituted Judgment Seriously I am a long-time advocate of patients' rights in general and the right to die in particular, but i believe the U.S. Supreme Court rendered the right decision in Cruzan. This is not a comfortable position for me. I have witnessed the lingering death of members of my immediate family three times in the last five years. My heart goes out to the Cruzan family. But the Court's unwillingness to overturn Missouri law is no more to blame for the Cruzans' plight than is your and my unwillingness to kidnap Nancy and spirit her away to a place where she can die in peace. The Court, in my opinion, did not have legal authority to do what the Cruzans asked of it. The U.S. Supreme Court does not sit as a super legislature over the states. It has no authority to rule on the wisdom of state laws or general power to promulgate uniform rules of state law. The Court has only the power to strike down state laws that conflict with federal law, including the U.S. Constitution. Thus, when the Court refused to invalidate Missouri's and convincing requirement for substituted judgment, it was saying only that it did not find the requirement to be in conflict with the Constitution or other valid federal law. It was not approving of the requirement or imposing it on all those states that have not adopted it, but merely saying it was permissible for Missouri (or any other state) to make that requirement part of its law--if it wanted to. For the Court to have overturned the Missouri requirement as unconstitutional, it would have had to find that the measure had been motivated by an illegitimate state purpose, or that the state purpose it advanced and the reasons for advancing it by the means chosen were clearly out-weighed by the burden imposed upon individual liberty interests. By neither of these tests is Missouri's approach to substituted judgment unconstitutional. If Missouri's approach burdens individual liberty interests, so does that of every other state that employs substituted judgment for PVS cases. By requiring clear and convincing, evidence of substituted judgment, Missouri prevents death decisions for some persons who are in PVS. But so do those states that do not require clear and convincing evidence for substituted judgment. Such states do not allow death decisions where there is no evidence for substituted judgment, or where the patient's family has not reached a death decision for the patient. What reason is there for thinking that Missouri's procedural safeguards that cause many PVS patients to be continued on life support are unconstitutionally burdensome but those of other states are not? Missouri's purpose is requiring the safeguards is the same as the presumed purpose in other states--to ensure that death is in fact what the patient would want for herself. This is centainly not an illegitimate state purpose. If the liberty interest here is that of patient choice, it can be argued that Missouri's higher standard of proof is designated to protect that interest. In contexts where less important liberty interests were at stake, the Court has not only allowed use of a clear and convincing standard, but at times required it. Similarly, denying family members a general power to make death decisions for patients is arguably more protective of patient liberty than less. …
The reaction of public utilities to the addition (and competitive) sources of energy supplied by solar technologies will have a significant impact on the commercialization of solar energy. Decentralized applications of solar energy need utility-produced power to back up the energy produced by solar means. The cost and availability of this power will largely determine the acceptance of solar energy. There are three legal issues surrounding the role of utilities in the solar commercialization effort: (1) the extent to which utilities may own, sell, lease, finance, or service solar devices for utility customers; (2) the degree to which solar-powered utilities may be able to compete with existing utilities; and (3) the degree to which various utility rate structures will be allowed to penalize decentralized solar users. The impact of state constitutional and statutory provisions upon these issues is examined, along with relevant federal constitutional doctrines. Finally, the statutes of the National Energy Act, many of which specifically address the above issues, are discussed.