- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
Since time immemorial, philosophers, theologians, mathematicians, and members of the bar have been fascinated with the concept of cause and effect. Indeed, since at least the days of the Scottish philosopher David Hume, there has been an exhaustive attempt to adequately define the nexus or link between the antecedent, the cause, and the subsequent, the effect. This search for a nexus, what some have called the ”relating relation” between cause and effect, or causation, has proven difficult, especially in the area of tort law.
At first blush, the issue of cause and effect and the relational issue of causation, would appear to be rather straightforward, however, “[a]lthough it sounds simple, ’causation is an inscrutably vague notion, susceptible to endless philosophical argument, as well as practical manipulation.'” Indeed, the element of cause-in-fact (as well as proximate cause) has proven especially troublesome in legal malpractice matters specifically and in tort matters generally. In legal malpractice matters more particularly, the judiciary and scholars alike seem rather perplexed over the element of cause-in-fact and the burdens plaintiffs have to demonstrate cause-in-fact and the value of the underlying claim, defense, or position that was allegedly lost at the hands of the negligent former attorney. For illustrative purposes, consider the issue of cause-in-fact and the plaintiff’s burdens of proof with regard to causation and damages in the following two legal malpractice scenarios, imaginatively referred to as scenario A and scenario B. . . .
Section 1983 of the Civil Rights Act permits individuals to bring private actions against state actors for “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Courts, however, have continually refused to recognize § 1983 actions to enforce the Family Educational Rights and Privacy Act of 1974 (FERPA), which prohibits federal funding of schools that have a ”policy of denying . . . the parents of students the right to inspect and review the education records maintained by the State educational agency.” When reviewing a § 1983 suit, courts must determine whether the statute in question creates an individual right sufficient to support a § 1983 action. In Gonzaga University v. Doe, the United States Supreme Court considered whether a student may sue a private university under § 1983 to enforce provisions of FERPA when the university releases the student’s educational records to unauthorized persons. The Court determined that no right to private enforcement exists under § 1983 because § 1983 only enforces individual rights and FERPA confers only collective rights. . . .
The American administrative state often looks like Hobbes’ Leviathan itself. It makes and changes law on a scale and with an inscrutability that are scarcely to be believed. Its agencies at times seem rigidly bureaucratic while at others cravenly partisan and political. They are unlike anything contemplated at the Founding, yet they exist in an environment that would crush anything less powerful or pervasive. Most importantly, though, the bases of federal agencies legitimacy and authority have been matched in their ambiguity only by that of how our constitutional traditions tolerate them.
A new school of thought integrating different critiques of the administrative state is now seeking to revolutionize the Leviathan. It is called ”democratic experimentalism” and it describes, while also trying to facilitate, new deliberative regulatory structures. It proposes to recreate a participatory democracy out of the technocratic and impenetrable pieces of the administrative state. Across diverse spheres once run by experts far remote (both physically and socially) from the citizens and localities concerned, pragmatic innovations have led to newly participatory and collaborative models. The academics who call themselves democratic experimentalists have sought to explain how certain of these instances share foundational similarities. . . .
Freedom of speech is a fundamental American liberty guaranteed by the First Amendment of the United States Constitution. The Supreme Court of the United States has ruled that a governmental regulation cannot unduly burden an individual’s First Amendment rights. In Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, the Court considered whether a government ordinance was improperly restrictive of speech by examining the breadth of speech covered and by using a balancing test that weighed the affected speech against the government interest advanced by the ordinance. The Court concluded that the ordinance was invalid because it was both overly broad in its restriction of noncommercial speech and not adequately tailored towards the government’s stated interest. . . .
In the American criminal justice system, the appropriate prosecutor’s office is responsible for seeking justice for the victims of crime, leaving crime victims with little or no recourse following a decision not to prosecute. Crime victims can address this concern through the use of a private prosecutor, a process that allows victims of crime, or the families of crime victims, to hire their own attorney to bring criminal charges against the alleged perpetrator of the offense. Though common in England, only a few American states allow private prosecutions today. . . .
As a result of recent advancements in reproductive technology, many infertile couples have turned to in vitro fertilization (IVF) as an alternative means of conception. Following the birth of the first test-tube baby in the United States in 1981, IVF has enabled the birth of more than 114,000 babies. Many couples who are struggling to conceive children view IVF as a last chance and a last hurrah for biological parenthood.
During the IVF process, a clinician extracts eggs from a woman’s ovaries and fertilizes them in a laboratory. Subsequently, several of the resulting embryos are transferred into the womans uterus. In recent years, many couples have opted to cryopreserve the remaining embryos, thereby retaining multiple future opportunities to conceive without the necessity of further egg retrieval attempts. . . .
Government officials may avail themselves of the qualified immunity defense in constitutional tort actions. The doctrine of qualified immunity evolved to protect the discretionary actions of government officials unless their conduct violates an individuals clearly established constitutional rights. In Hope v. Pelzer, the United States Supreme Court refined the standard of qualified immunity, holding that prison guards were not immune from liability because they should have known that their conduct was unconstitutional under the precedent cases and state regulations. . . .
Over the past few centuries, domestic and international maritime commerce has become dependent on a set of distinct incentives to foster private efforts of research and development and to engage in vastly expensive salvage operations. These incentives all shared the common goal of recovering property lost at sea. Recently, however, federal legislation has acted to alter and, in some cases, completely diminish these incentives by replacing them with civil and criminal penalties. Additionally, the federal legislation gives the exclusive right of possession and control over otherwise abandoned shipwrecks to individual States or the United States. Consequently, shipwrecks will fall prey to the ravages of the sea because the states lack the financial incentives and resources to successfully launch vastly expensive and risky search and recovery efforts for lost and abandoned shipwrecks. This federal legislation, therefore, may lead to the permanent loss of historically, scientifically, culturally, socially, and economically valuable artifacts that, contrary to the policies of admiralty law, will remain lost at sea forever. . . .
Across the globe, from India to New York, Australia to Nigeria, people struggle to preserve and protect what little water supply they have. The combination of droughts, floods, pollution, overuse, misappropriation, waste, and increased need make water one of the world’s most coveted and quickly diminishing resources. The reality is that less than one half of one percent of the water available on earth is fresh water, the rest being found in the oceans, polar ice, and inaccessible groundwater. Steady population growth, increasing worldwide by eighty-five million people per year, adds to the water availability problem in many countries. Many people attribute the cause of the accelerated depletion of freshwater supplies to the advanced technologies in the developed world, promulgating the waste of the resource through flushing toilets and running the kitchen sink until the water warms. Industries account for huge amounts of water use, approximately twenty to twenty-five percent worldwide, and sixty-five to seventy percent of the remaining water supply is used in irrigation for crop production. . . .
Thomas Bulfinch was right. Relaxation from study can be, under the right circumstances, a form of study. But how can one provide the right circumstances in a law school curriculum? Law and Literature comes immediately to mind.
Ideas are inherently fascinating things, yet law students often resist their fascination. In so-called practical courses, like the ones I usually teach, a discussion of ideas is generally greeted as an unwelcome distraction from the perceived substance of the course. And even in avowedly theoretical courses like Jurisprudence, ideas often lose their savor if they are presented merely as abstract propositions or experienced merely as exercises in taxonomy (deontological) or name-dropping (Kantian). Moreover, in either kind of law school course, any discussion of ideas is hampered by the students’ suspicion that some ideas are necessarily sounder than others and that the professor, despite her protestations to the contrary, knows perfectly well which are which. An untrammeled discussion of ideas is more likely to bloom in an atmosphere where the participants presume that one person’s ideas are as good as anyone else’s: an atmosphere where each student can approach each idea with the freedom of an amateuran atmosphere, indeed, where the professor is something of an amateur, too. . . .