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A quarter century ago, the Lexington, Kentucky Veterans Affairs (VA) Medical Center pioneered a risk management program now known as “disclosure and offer.” Its guiding principal was that patients injured by malpractice should be told about the incident and “made whole” without having to litigate.
After a patient suffered an injury that the VA judged to have been caused by a departure from the standard of care, the VA contacted the patient and, along with an attorney of his choosing, invited him to meet with VA staff. At the meeting, the VA disclosed the error to the patient and discussed a plan about how to meet the patient’s medical needs. With guidance from his own legal counsel, the patient was offered fair, negotiated compensation (defined as what a judgment would be, including pain and suffering, if the case went to trial).
The VA program’s creators believed advising patients to seek counsel was necessary to protect the program’s integrity: Negotiating compensation for malpractice requires experience and expertise in law and medicine alike. Risk managers have this experience, unrepresented patients do not. And, because the goal was to be completely transparent and honest, the fact that a patient had legal representation was not seen as a threat. If the attorney made an unrealistic demand, VA risk managers simply said no to it.
In 1999, the Lexington VA team published a paper describing their experience using this method. 1 They concluded that payouts were similar to hospitals in a comparison group that did not have disclosure-and-offer protocols. It also appeared to save the VA money by reducing legal expenses that would have been incurred had these cases been litigated. This was deemed a success: The program treated patients ethically, helped the VA realize savings, and facilitated patient safety analyses without fear of legal ramifications.
Today, disclosure-and-offer programs are fixtures at facilities nationwide. 2 The current generation of programs, however, appears to have adopted a self-serving approach that eliminates safeguards designed to assure patients get fair advice regarding compensation. The most recent data revealed that only four percent of disclosure programs advise patients to seek independent legal advice.3
This should not be. To disclose an error and not to offer full compensation—or to disclose an error, but then leave a patient to negotiate with a trained risk manager with adverse financial interests—puts physicians on the wrong side of a conflict of interest.4
Recent research shows why programs that avoid attorney involvement may, intentionally or not, take advantage of patients.5 Only sixty percent of the study participants (each of whom was asked to assume they had suffered an injury and then had it disclosed to them as having been caused by a clear act of malpractice) described themselves as being very likely or somewhat likely to seek counsel regarding their legal rights. The potential for abuse becomes clear when coupling this with the finding that 78.8% of those surveyed stated they would be very likely or somewhat likely to accept waiver of medical expenses only (as opposed to full damages) as compensation.
The VA believed that the disclosure-and-offer programs’ collaborative tone made it difficult for unrepresented patients to recognize the need to ask nuanced questions that were likely beyond their legal understanding. Risk managers have a primary financial responsibility to their employers that should be balanced by a skilled representative for the patient. Without this, unrepresented patients would likely never know whether an offer was sufficient to pay future injury-related expenses (for medical costs and lost earnings); whether offered pain and suffering damages (if any) approximated a likely jury value; or if the offer had been discounted for any reason (e.g. unclear liability or to build-in room with the expectation the patient would attempt to negotiate).
To prevent miscommunications or misunderstandings, we recommend that disclosure programs adopt a two-part protocol as part of any discussion of malpractice with a patient:
Nothing in these protocols should be considered revolutionary. In fact, attorneys who suspect they have committed legal malpractice must exercise these same practices with their own clients.6
Advising patients to seek counsel protects their interests and the process’s integrity too. Without it, patients may not recognize that the discussion about compensation is inherently a legal negotiation in which those making the offer have a conflict of interest. It is also important to allow patients to have a cooling-off period if they initially decline to consult an attorney. Ultimately, some patients may decide not to seek counsel, or even not to take compensation. Making this decision, however, presupposes the patient has a fair opportunity to consider the options and the effects of foregoing compensation. For that reason, no decisions should be made with unrepresented patients until they have had a fair opportunity to understand the significance of their decisions.
These best practices are not intended as a windfall for plaintiffs’ attorneys. Instead, plaintiffs’ attorneys are ethically bound to do the right thing by significantly reducing their fees if claims are resolved as a result of the disclosure-and-offer process.7 If patients are able to afford it, plaintiffs’ attorneys should work for a reasonable hourly fee. If not (or if patients would prefer to pay on a contingency fee basis), the plaintiff’s attorney is obligated to offer a contingent fee significantly less than the traditional one-third.
Compensation is a tricky issue and one in which a patient both deserves and requires advice from experienced advisors whose only loyalty is to the patient. By adopting these protocols, medical facilities and patients alike can resolve a bad situation in an ethically sound way. In the event that negotiations fail and result in a trial, hospitals are in a strong position to prove that their postincident activities were fair and patient-centered rather than self-serving.
Gabriel Teninbaum and Steve Kraman, Essay, Disclosure and Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation, 1 Suffolk U. L. Rev. Online 1 (Feb. 25, 2013), http://www.suffolklawreview.org/teninbaum-kraman.
Gabriel Teninbaum, Associate Professor of Legal Writing, Suffolk University Law School. Professor Teninbaum has written extensively in the area of medical apology. His other publications include How Malpractice Apology Programs Harm Patients, 15 Chap. L. Rev. 307 (2011) and Medical Apology Programs and the Unauthorized Practice of Law, 46 New Eng. L. Rev. 505 (2012).
Dr. Steve Kraman, Professor, Division of Pulmonary, Critical Care and Sleep Medicine, Department of Internal Medicine, University of Kentucky. Dr. Kraman is the former chief of staff of the Lexington, Kentucky VA Medical Center. Together with medical center counsel, he started and managed that facility’s disclosure-and-offer program.
A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
This is a footnote example for an author’s bio blurb.*
This is a footnote example for a journal article. 1
This is an id. 2
This is a footnote example with an online source. 3
This is a footnote example with a newspaper. 4
This is a footnote from a periodical with a link. 5
This is a supra. 6
This is a footnote example for another journal. 7
This is a footnote example for a case citation. 8
This is a footnote example for a print newspaper (prefer online).9
This is a footnote example for a book. 10
And so on. 12
*. Associate Professor of Legal Writing, Suffolk University Law School. Professor Teninbaum has written extensively in the area of medical apology.
1. See Gabriel Teninbaum and Steven Kraman Disclosure & Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation, 1 Suffolk U. L. Rev. Online 1 (2013).
2. See id. at 725–39.
3. See The Hands That Prod, the Wallets That Feed: Super PACs Are Changing the Face of American Politics. And It May Be Impossible to Stop Their Startling Advance, The Economist, http://www.economist.com/node/21548244.
4. See Sunday Dialogue: Money and Influence in US Elections, N.Y. Times, Mar. 11, 2012, § SR (Sunday Review), at 2; see also Editorial, The Wrong Way to Shake Up Congress, N.Y. Times, Mar. 18, 2012, at A18 (“Attack ads, which are [the Super PACs’] stock in trade, are tainting the political process and turning off many voters.”).
5. John Hudson, The Media Convinced Everyone to Hate Super PACs, The Atlantic Wire (Mar. 13, 2012), http://www.theatlanticwire.com/politics/2012/03/media-convinced-everyone-hate-super-pacs/49834/.
6. See Issacharoff, supra note 4.
7. See Guy-Uriel E. Charles, Democracy and Distortion, 92 Cornell L. Rev. 601 (2007).
8. Citizens United v. FEC, 130 S. Ct. 876 (2010).
9. See Sunday Dialogue: Money and Influence in US Elections, N.Y. Times, Mar. 11, 2012, § SR (Sunday Review), at 2; see also Editorial, The Wrong Way to Shake Up Congress, N.Y. Times, Mar. 18, 2012, at A18 (“Attack ads, which are [the Super PACs’] stock in trade, are tainting the political process and turning off many voters.”).
10. John Hart Ely, Democracy and Distrust (1980).
11. Heather K. Gerken & Michael S. Kang, The Institutional Turn in Election Law Scholarship, in Race, Reform, and Regulation of the Electoral Process 86 (Guy-Uriel E. Charles, Heather K. Gerken & Michael S. Kang eds., 2011).
12. Remarks by the President in State of the Union Address, The White House (Jan. 27, 2010, 9:11 PM), http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address.
The average human loses between forty and one hundred strands of hair every day. Humans make one liter of saliva each day. In a lifetime, the average human sheds about forty pounds of skin. Hair, skin, and saliva are just a few ways in which individuals leave behind traces of their identity in the form of deoxyribonucleic acid (DNA). DNA has become an irrefutable method for identifying a person. In essence, humans are constantly leaving traces of their identity everywhere they go.
In the past decade, DNA has transformed criminal procedure jurisprudence. Law enforcement officers and prosecutors now rely heavily on DNA to solve crimes. DNA reveals unique genetic information about an individual’s race, ethnicity, and medical risks for diseases such as breast cancer or the risk of having a child with cystic fibrosis. Access to a person’s DNA provides a dangerously intimate blueprint of a person’s body. If misused, DNA information could cause a person to be stigmatized, discriminated against, or targeted for criminal prosecution. Some scientists have even proffered the idea of a behavioral gene predisposing an individual to a tendency to commit crimes. Easy access to DNA exposes an individual’s most private and intimate information to the world.
As genetic information becomes increasingly easy to obtain, it renews the timeless debate over precisely which circumstances trigger an individual’s right to privacy. An individual’s right to be left alone has deep roots in English common law, but it continues to be the subject of contentious legal debate today. Although advancements in science and technology have many advantages, these advancements can sometimes encroach upon individual privacy rights. Unless DNA is protected by law, government access to an individual’s genetic information will greatly undermine Americans’ Fourth Amendment rights. In response to the dire need to protect an individual’s private genetic information, the Massachusetts Legislature introduced a Genetic Bill of Rights (GBR) that would establish property and privacy rights for genetic information and genetic material.
This Note explores the proposed Genetic Bill of Rights—including the current proposed version’s flaws—and makes recommendations for a more effective version. Part II.A summarizes Fourth Amendment history and the basis of the constitutionally implied right to privacy. Part II.B presents different legal theories for protecting DNA. Part II.C studies and explains the proposed Massachusetts Genetic Bill of Rights. Part II.D studies the application of conflict of laws in criminal procedure. With conflict-of-laws principles as a foundation, Part III analyzes the effectiveness and validity of the proposed Genetic Bill of Rights. . .
On November 4, 1995, Leandro Andrade was arrested for the benign offense of shoplifting $84.70 worth of children’s movies from a K-Mart store located in Ontario, California. Just fourteen days later, Andrade was again arrested for stealing $68.84 of children’s movies in Montclair, California. A life of crime was nothing new to Andrade. In fact, Andrade had been in and out of prison since 1982 for a host of offenses, including petty theft, first-degree residential burglary, and transporting marijuana.
In 1994, California adopted a “Three Strikes and You’re Out” law (three strikes law), which is an antirecidivist law that mandates a sentence of twenty-five years to life in prison upon a criminal’s third felony conviction if the criminal has two prior serious or violent felony convictions. The State charged and convicted Andrade of two counts of petty theft with a prior conviction for shoplifting children’s videotapes—a felony in California. Tragically, because Andrade had two prior violent or serious felony convictions, a judge sentenced Andrade to serve two consecutive terms of twenty-five years to life in prison. Leandro Andrade will not be eligible for parole until 2046, at which time he will be eighty-seven years old.
If California’s three strikes law is considered overly broad, at the opposite end of the spectrum is Georgia’s version, which only applies to seven specific offenses. Colloquially known as Georgia’s “Seven Deadly Sins Law” (two strikes law), Georgia’s two strikes law is considered the nation’s harshest because it only takes two strikes—as opposed to three—for a criminal to be “out.” A criminal who is convicted for committing a second serious violent felony is sentenced to life in prison without the possibility of parole or any other sentence-reducing measures. In Ortiz v. State, Robert Ortiz was charged and convicted of rape, aggravated sodomy, and burglary in Georgia. Because the crimes of rape and aggravated sodomy are categorized as serious violent felonies, Ortiz will spend the rest of his life behind bars without any hope for parole.
Here are two versions of a three strikes law, two repeat offenders with differing criminal histories, two very different triggering offenses, and yet, both Leandro Andrade and Robert Ortiz will spend the rest of their lives behind bars. The message both California and Georgia are trying to send to recidivists, although not equally clear in California’s case, is that if you continually commit a certain class of felonies, you are going to prison for life. Yet, when juxtaposed, these specific outcomes inevitably beg the question: Does incarcerating a repeat offender for life—in Andrade’s case, for petty theft—violate the Eighth Amendment’s proscription against cruel and unusual punishment? Moreover, do the social and financial costs saved from prevented crimes warrant the frequent use of three strikes laws in California and Georgia? Or rather, are these laws needlessly filling prisons with lifelong prisoners who, as they age, will only cost states more to incarcerate?
This Note compares California’s and Georgia’s versions of a three strikes law. Part II of this Note briefly discusses the meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause as interpreted by the United States Supreme Court. Additionally, Part II explains the respective mechanics and effects of both California’s and Georgia’s versions. Finally, Part III of this article seeks to substantiate several claims: first, the United States Supreme Court has significantly diverged from its prior decisions interpreting the Eighth Amendment’s Cruel and Unusual Punishment Clause regarding noncapital punishments; second, Georgia’s version of a three strikes law warrants greater judicial deference than California’s; and third, although both California’s and Georgia’s versions of a three strikes law contribute to prison overcrowding and increased costs in their respective states, California’s version causes a greater burden. . .
Although U.S. economists note that the most recent U.S. recession came to an end in June 2009, belt tightening can still be felt throughout the economy, more than three years later. Perhaps nowhere is this more evident than in state budgets, which continue to face huge shortfalls and endure significant cutbacks. With legislatures generally unwilling to raise taxes to make up for these deficits, states have looked toward new sources—unclaimed property, in particular—to find much needed cash.
By some accounts, $35 billion of unclaimed property is currently held by states—an amount that continues to increase annually. Simply put, the transformation of unclaimed property into revenue first requires a state to “escheat,” or take custody of property from a “holder,” which is generally a corporation. Furthermore, “unclaimed property” usually refers to intangible property (such as amounts represented by uncashed checks, amounts in suspense, or outstanding stock) in the custody of a holder that actually belongs to another (known as the “owner”), but which has been inactive for a statutorily defined amount of time (the “dormancy period”). In their search for revenue, states have recently been escheating more unclaimed property than ever through the use of increasingly aggressive techniques. Although states do not take title to the property they recover, most state laws provide that at least some portion of funds received as unclaimed property is deposited in a state’s general fund, or go so far as to direct the proceeds from unclaimed property to fund specific state programs. The benefits of a state’s use of unclaimed property are compounded by the fact that underlying owners, to whom the property rightfully belongs, rarely claim escheated property from the state. Thus, states have begun to transform their unclaimed-property laws and regulations into revenue-raising mechanisms that undermine their original, consumer protection-oriented goal of reuniting missing owners with their property. This departure raises a host of due-process concerns for unclaimed-property holders, which should be considered a defense to aggressive state escheatment.
This Note will focus on the constitutional concerns raised by two specific techniques employed by states that have resulted in the escheatment of large quantities of unclaimed property: the use of contract auditors paid on a contingency basis to make unclaimed-property assessments against holders, and state and auditor reliance on statistical modeling and estimates to make assessments against holders when their unclaimed-property records are deemed incomplete or inadequate. This Note will begin by explaining the history and development of escheat law, from its common-law origins in England to its modern evolution in the United States. Particular attention will be paid to cases that have attempted to address issues relating to audit techniques and revenue-raising statutes. Finally, this Note will introduce new considerations and propose new procedures that legislatures, courts, and state unclaimedproperty administrators should heed to address procedural shortfalls in constitutionality and fairness. . .
Behind the current cacophony of concerns about the unemployment rate, slow economic recovery, and U.S. budget deficit, is the ever-present murmur of the impending economic impact baby boomers will have as they retire and rely on government benefits. In 2010 Social Security went “cash negative,” states threatened to drop out of the Medicaid program, and more individuals dipped into their 401k plans for current needs. The “silver tsunami” looms closer as the first members of the baby-boom generation turned sixty-five in 2011, and concerns over how to manage long-term care for elders increase at an individual, state, and federal level. State and federal governments’ concerns come from the heavy burden long-term care for boomers will put on government-funded health services at a time when governments face pressure to cut these services to decrease deficits. Individuals’ worries stem from the need to provide long-term care for themselves or for aging family members.
Individuals who care, or will care, for an aging relative must consider how long-term care duties can decrease both their earning potential in the workplace and their savings as they pay for an elderly relative’s necessities. Caregivers often cannot afford to cut down their time or quit their job outside the home. In order to continue caring for an elderly relative, an increasing number of caregivers are asking elder-law attorneys to draw up agreements in which the caregiver helps the elder for a certain number of hours each week in exchange for an hourly wage. These caregiving agreements benefit both parties by relieving financial strain on caregivers and by keeping elderly relatives out of nursing homes.
While caregiver agreements may reassure individual caregivers, these same agreements are a concern for states. State Medicaid agencies claim these agreements are often a front for elders to gift assets to their children, impoverish themselves, and qualify for the state to pay for long-term care in a nursing home. The high price of nursing home care would quickly deplete most seniors’ accumulated wealth; however, if elders can transfer their assets to their children via a “caregiver contract,” elders may qualify to have Medicaid pay for nursing home care, while ensuring that their posterity will receive an inheritance. States want to preserve scarce resources for those who truly cannot afford care.
This Note will explore the benefits and burdens of courts acknowledging and upholding caregiver agreements, ultimately arguing for more recognition of caregiving agreements to encourage greater numbers of caregivers for the burgeoning elder population. First, this Note will examine the parties to caregiver agreements and what influence their identities may have on a court’s evaluation of the agreement. Parties to a caregiver agreement are typically family members, so the initial discussion of the parties’ identities will lead to a discussion of the cultural and legal presumptions against family-member contracts. Then, turning more specifically to caregiver agreements, this Note will outline the considerations a Medicaid agency uses when deciding if an elder qualifies for benefits. State Medicaid agencies decide long-term care benefits; therefore, this Note will use Massachusetts as a case study to review caregiver agreements evaluated by the Office of Medicaid Board of Hearings and state courts. In light of the decisions in Massachusetts, this Note will propose clarifications to the Massachusetts Medicaid regulations to give Massachusetts and other states direction about how to allow caregivers who truly are rendering services to contract for their services, while avoiding giving elders Medicaid services if their “contract” was merely a gift. In addition, this Note will analyze current presumptions about family members and contracts. Finally, this Note will argue that acknowledging caregiver agreements will benefit caregivers, the elderly, and the state. . .
Although the First Amendment protects the right of free speech, the Supreme Court of the United States has held that certain types of speech made by students on campus may be restricted in public schools. The Court has not addressed, however, student speech originating off campus on the internet, requiring the circuit courts to develop and apply methods of dealing with this type of speech, including the Second Circuit’s approach, commonly referred to as the Tinker test. In Layshock ex rel. Layshock v. Hermitage School District, the Court of Appeals for the Third Circuit considered whether the Hermitage School District could discipline a student, Justin Layshock, for creating an offensive profile on the social-networking website, MySpace, while off campus. The court held that the school district could not regulate Layshock’s speech because not one of the limited circumstances permitting regulation—as prescribed by the Supreme Court—was present.
In December 2005, Layshock, a Hickory High School student, created a profile that mocked his Principal, Eric Trosch, on MySpace. Layshock created this profile using his grandmother’s computer, at her house, during nonschool hours. Layshock granted access to fellow students, and, not surprisingly, news of the profile “spread like wildfire” spawning at least three copycat profiles. Layshock did access the profile he created twice at school, but school officials took action based on the belief that Layshock’s speech was entirely off campus.
On December 21, school officials learned that Layshock may have created one of the false profiles and decided to call Layshock and his mother to a meeting with the Superintendent. At that meeting, Layshock admitted to creating the profile and, without any prompting, walked to Principal Trosch’s office to apologize. School officials took no disciplinary action at the meeting; however, in January 2006, school officials held a disciplinary hearing concluding Layshock had violated the school’s discipline code and instituted various punishments, including a ten-day suspension and placement in an alternative education program.
On January 27, 2006, the Layshocks filed a three-count complaint alleging that the school district had violated Layshock’s First Amendment right to free speech. The district court granted summary judgment in favor of Layshock because the school district failed to demonstrate a sufficient nexus between the profile Layshock made and a substantial disruption at the school. A three judge panel from the Third Circuit affirmed on appeal; however, the Third Circuit vacated this decision and that of a factually similar, yet differently decided, case, J.S. ex rel Snyder v Blue Mountain School District, opting to rehear both en banc to resolve the apparent intracircuit split. After the rehearings, the court reversed J.S. and reaffirmed the earlier holding in Layshock, that the regulation of Layshock’s speech violated the First Amendment. . .
In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court produced a decision worthy of Janus, the two-faced Roman god whose image appears on Janus Capital’s corporate logo. The five-to-four opinion by Justice Thomas, while paying lip service to the private right of action under Rule 10b-5, effectively cut off that right for many plaintiffs. The Court in Janus addressed the question of whether a mutual fund’s management could be liable to investors in the fund’s parent company for losses tied to misstatements in the fund’s prospectuses. Answering in the negative, the Court held only a third group—the fund’s independent board of trustees—could have “made” those misstatements under Rule 10b-5. Significantly, the Court concluded only those with “ultimate authority” over a statement are liable for making it—a new Rule 10b-5 standard apparently not limited to the unique structures of mutual fund families.
And so, in its zeal to extend the limitations of Central Bank of Denver v. First Interstate Bank of Denver, eliminating secondary liability for private plaintiffs under Rule 10b-5, the Janus majority provided a roadmap for avoiding primary liability, regardless of culpability. Indeed, the dissent predicted “guilty” management may now be able to launder a false statement through an “innocent” board while avoiding liability for lack of the ultimate authority to make that statement. Janus may have interpreted Rule 10b-5 so narrowly that conceivably no one could be primarily liable for “making” a demonstrably false statement–neither those who wrote it without the necessary authority nor those who approved it without the necessary intent.
Assuming the Court intended, as it said, to retain Rule 10b-5’s private right of action—and assuming Congress, in enacting antifraud legislation, intended someone be held liable for material misstatements in securities filings—this Note recommends interpreting the phrase “ultimate authority,” which is inadequately defined in Janus, to mean “ultimate control,” a phrase appearing synonymously in the majority opinion. As Justice Thomas reasoned, “[w]ithout control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right.” While the concept of ultimate authority leaves open the question of who is really responsible for a statement, the concept of ultimate control does not. Ultimately, the legislative intent and policies behind Rule 10b-5 will be served best by a precise definition of its contours. . .
“As children, my brothers and I enjoyed a level of freedom that might make a modern parent gasp, and sometimes we exercised that freedom in the kitchen, where we fed one another weird concoctions that tended toward the unhealthy . . . . The only time I ever refused to sample my brothers’ culinary creations was when asked to close my eyes during its preparation. I may have been a child, and one with a sense of humor, but I wasn’t an idiot.”
Leslie Hatfield’s quote raises a simple question—what did her brother have to hide? As one of the most powerful industries in the United States, factory farming has become the dominant source of food production in modern America. Despite its major role in providing food to the public, the factoryfarming industry has landed in the crosshairs of animal-rights and environmental activists seeking to expose the public-health, environmental, and animal-rights violations of commercialized farming facilities. To date, the most common means of exposing these concerns is through undercover investigations—activists pose as employees to obtain footage of animal abuse, health-code violations, and pollution. These investigations have exposed unsavory conditions on factory farms, generated considerable media attention, and created substantial financial consequences for those facilities that have been exposed. In response to the increase of undercover investigations, state legislatures, with the support of factory-farming lobbyists, have passed legislation that will criminalize undercover photography and videotaping on farms, and many other states are attempting to pass similar laws.
Critics of the proposed legislation have commonly referred to the statutes as “whistleblower suppression” laws, while supporters have referred to them as “animal interference” laws, but it was Mark Bittman, of the New York Times, who coined the most popular term—“ag-gag” laws. As of the publication of this Note, five states have “ag-gag” laws on the books, while eight other states are either considering or have recently rejected similar legislation. “Ag-gag” laws take aim at varying levels of conduct, but the behavior targeted by each statute generally falls within one of three categories: (1) dishonesty in the jobapplication process, when the applicant has the intention of infiltrating the facility to investigate; (2) the act of photographing or videotaping on agricultural facilities; and (3) the act of photographing or videotaping, as well as the possession or distribution of such videos.
This Note will focus primarily on the second and third categories of “ag-gag” legislation, analyzing the constitutionality of proposed and existing laws under the First Amendment. Specifically, this Note will address whether photography and videotaping, in the context of undercover farming investigations, should be considered protected speech, and if so, whether “ag-gag” laws amount to impermissible, content-based restrictions on speech. Additionally, this Note will consider whether “ag-gag” laws that place restrictions on the distribution of undercover footage are prior restraints on speech and thus barred under the First Amendment. . .
Charles Fried wrote Contract as Promise because he objected to the idea—growing increasingly prevalent in the years preceding the book’s publication—that something other than moral duty underlay the social institution through which the state intervenes to enforce, at the request of one private party, the promissory obligations of another private party. Under one view, for example, contract law is a product of social development since the Industrial Revolution, the means by which large, impersonal institutions—corporations, unions, governments—regulate their affairs. According to another line of thought, contract law is merely a way of doing justice and imposing social policy on parties who have come, in one way or another, to interact with each other. Professor Fried perceived a wholesale abandonment of the justification of contract law as a means by which the state affirms classically liberal individualism. Or, as he put it, “[t]he validity of a moral, like that of a mathematical truth, does not depend on fashion or favor.” The book is an unapologetic paean to Enlightenment (and particularly Kantian) conceptions of the free and autonomous self, able to injure another not just by way of inducing detrimental reliance, but also by acts of individual will that create disappointed expectations and undermine trust in the recipient of a promise.
For most of the thirty years since its publication, Contract as Promise has carried the lion’s share of the burden of deontological justification for contract law as against theories grounded essentially in consequentialism (the underlying moral basis of welfare economics) or sociology. This issue of the Suffolk University Law Review records a celebration of a man and his work that has stood the test of thirty years’ time as theoretical explanation, normative assessment, and an essential lightning rod for thinkers whose philosophical inclinations may well not accord with Professor Fried’s. On March 25, 2011, we gathered a stellar group of Professor Fried’s friends, admirers, and critics (not mutually exclusive categories, by the way) to consider the impact of his arguments, the current state of contract theory, and the likely direction of future work in the field. . .