- 50th Anniversary
- Online Edition
- Print Edition
- Donahue Lecture Series
The Self-Incrimination Clause of the Fifth Amendment guarantees the privilege against self-incrimination. Throughout the last century, the United States Supreme Court has broadly interpreted this clause, and has deemed it applicable in a host of situations outside of the criminal courtroom context. In Chavez v. Martinez, the Court considered whether a Self-Incrimination Clause violation occurs when a police officer coerces self-incriminating statements from a suspect in custody. In a splintered decision, the Court concluded that the coercion of self-incriminating statements, absent the use of the statements in a criminal case, is not a violation of the Fifth Amendment Self-Incrimination Clause. . . .
Congress, through the actions of the United States Patent and Trademark Office (USPTO), issues patents to ”promote the Progress of Science and useful Arts.” In exchange for contributing an invention to the public, the USPTO grants to the contributing inventor a temporally-limited exclusive right to that invention. Accordingly, for the USPTO to grant a patent to an invention, it must satisfy a number of statutory requirements, including that it be novel, nonobvious, and directed to patentable subject matter. . . .
In a handful of cases, including the landmark civil liberties case of Hamdi v. Rumsfeld, the United States Supreme Court was divided between upholding, remanding, and overturning a lower court decision, with no majority in favor of any of these three dispositions. In each of these cases, at least one Justice switched his or her vote to achieve a majority. With the Supreme Court taking ever fewer cases and producing increasingly complicated split decisions, we may expect this pattern to recur more often. This article, drawing upon game theory and public choice scholarship, addresses how and why this practice of strategic vote switching emerged and contrasts the practice with alternative solutions. . . .
The Fourteenth Amendment of the United States Constitution provides that no state shall ”deprive any person of life, liberty or property, without due process of the law.” Parents have a liberty interest in raising, caring for and maintaining custody of their children. Although parents have a liberty interest in the custody of their children, the state has the power to restrict parental freedom in matters affecting the welfare of a child.
The state may intervene when a childs welfare is at risk. A child’s welfare is at risk when the child’s physical or mental health is in danger and when the child is abused or neglected. As a matter of due process under the Fourteenth Amendment, parents are entitled to a hearing before removal of children from their custody. . . .
This Note proposes that courts impose a limited legal obligation on employers to respond to reference inquiries when the employer is protected by a legal privilege. Part II explains the lack of a common-law duty to warn or protect third parties, and its relevance to the employment reference situations. In Parts III and IV, this Note explains the tort of defamation and its many defenses, including the qualified or conditional privilege available to employers in the employment reference setting. This Note contends that employers who refuse to provide references, despite the protection of their qualified immunity, essentially receive something for nothing. Part V explains the tort of negligent misrepresentation, and Part VI surveys case law on how negligent misrepresentation applies when employers selectively omit negative information from employment references. Part VII surveys some solutions to the reference dilemma posed by legal commentators.
The Note concludes that, while well intentioned, the proposals made by these commentators are insufficient. Part VIII argues that courts should impose an affirmative duty upon employers, based on a combination of the foreseeability of the harm to third parties and the existence of a qualified privilege. In applying the duty, courts should distinguish between physical (personal) harm and financial harm, with the duty being imposed to prevent only the former. . . .
In November 2001, Cape Wind Associates, LLC (CWA) applied to the United States Army Corps of Engineers (Corps) for a permit to construct a data tower in Nantucket Sound, as the initial stage of a wind power project. Local citizen organizations filed suits against both CWA and the Corps alleging that a state license was required and that the Corps lacked the authority to issue such a permit. In August 2003, the District Court for the District of Massachusetts found that the federal government had exclusive jurisdiction over the area of Nantucket Sound in question, thus negating a need for CWA to seek state approval. A month later, the District Court ruled in the Corps’ favor, stating that under current legislation the Corps had the authority to issue such a permit, and had followed the few procedures in place in determining that the Cape Wind data tower was acceptable. . . .
This short essay addresses a topic important to both corporate governance and, perhaps more importantly, vital to the satisfaction that we lawyers can draw from our professional lives: our conception of the duties of a lawyer when she engages in advising and assisting corporate clients. While the topic is a bit abstract, it has large practical implications.
For more than two years newspapers and television news programs have been rich in stories about corporate abuse, about repeated failures in our system of corporate governance, and, more positively, about attempts to improve the quality of controls that we deploy to assure that business corporations operate responsibly within the law. Financial scandals are, of course, a more or less permanent feature of our market economy. They wax and wane, fed by cycles of manic enthusiasm and suppressed by periods of listless stock prices. But while financial fraud is neither new nor surprising, the U.S. public was nevertheless deeply shocked by the sudden implosion of Enron Corporation and the unmasking of massive fraud at WorldCom. These were not only huge and important companies; they were taken to be prototypes of modern business enterprise. Each company was a growth-oriented innovator. Each company had spectacular success and was closely monitored, if not lionized, by Wall Street and the financial press. But the journalists and financial analysts had it all wrong. In fact, these firms were paragons of deception. The scale of the deceptions and the breadth of the individuals who seemed complicit in them from corporate directors to auditors, from bankers and analysts to lawyers was very alarming. To many, these shocking events looked uncomfortably like systemic failure of one of the core legal institutions of our capitalist economy. . . .
For more information about Professor Allen’s Donahue Lecture (which served as the basis for this article) please click here.
The Americans with Disabilities Act (ADA) aims to protect individuals with disabilities by providing a legal remedy against discrimination. The ADA, however, does not apply to small businesses of fewer than fifteen employees that would otherwise be heavily burdened by the expense of defending against discrimination actions. In Clackamas Gastroenterology Associates, P.C. v. Wells, the Supreme Court of the United States addressed the issue of what constitutes an “employee” for determining whether a business association qualifies for the small business exemption under the ADA. The Court relied upon the common-law element of control as the guidepost for analyzing an employee’s true status and rejected any approach based solely upon the labels attached to the individual within the business association. . . .
The First Amendment guarantees freedom of speech and expression without government intrusion. Since the emergence of the Internet as a valuable informational resource, legislators have tried to strike a balance between the online protection of minors and the preservation of First Amendment rights. In United States v. American Library Association, Inc., the United States Supreme Court considered whether filters on federally funded Internet access violate the First Amendment rights of library patrons. Recognizing Internet filtering as a librarys collection decision, the Court held that public libraries use of Internet filtering software did not violate the First Amendment. . . .
In both modern and historical times, class action lawsuits have required plaintiffs to share a common interest when they proceed collectively in an action. When Rule 23 of the Federal Rules of Civil Procedure (Rule 23) went into effect in 1938, it reflected the common-interest requirement by requiring class action plaintiffs to share a common question of law or fact. That same year, when Congress enacted the Fair Labor Standards Act (FLSA), it drafted the common-interest requirement into § 216(b) of the statute, which allows employees to bring suit either individually or on behalf of others who are “similarly situated.” Yet it remains unclear whether Congress intended § 216(b) to serve as a separate procedural device, or whether Congress simply intended to reflect the common-interest requirement of a class action lawsuit. . . .