Notes

As many as 98,000 people die each year as a result of medical error. According to law and economics scholars, the solution to this problem is straightforward: When calibrated correctly, medical malpractice liability will force healthcare providers to internalize the cost of their negligence, incentivizing improvements to patient safety that will reduce medical error. Debate has raged for decades over the coherence of deterrence theory, but little attention has been paid to the erosion of one of its bedrock assumptions: that the procedural mechanism through which claims are to be resolved is litigation. Arbitration has become pervasive in the healthcare context, but its effects on medical malpractice liability’s ability to deter medical error have been largely overlooked by public health and legal scholars. This Note argues that the adoption of arbitration will not, as law and economics scholars assume, improve the medical malpractice regime’s ability to deter error. In addition to drawing on existing law and economics and public health scholarship to advance this descriptive claim, this Note studies the experience of Kaiser Permanente, the nation’s largest integrated healthcare consortium, in using arbitration to resolve medical malpractice disputes with its seven million members in California.

Due to a now-repealed mandatory jurisdiction statute, in 1972 the Supreme Court was forced to decide the issue of whether there was a constitutional right to same-sex marriage. Their opinion, as stated in the case Baker v. Nelson, was: “The appeal is dismissed for want of a substantial federal question.” That sentence literally comprises the entirety of the summary opinion, and that sentence has obstructed progress in same-sex marriage litigation for decades, including in the last few years. This Note argues that Baker v. Nelson should carry zero precedential weight in 2014. Intervening doctrinal developments should have rendered the case overruled, particularly Zablocki v. Redhail, which conclusively stated a fundamental right to marry under the Due Process Clause. Furthermore, there are significant differences between the factual circumstances of Baker and those of modern cases, particularly the fact that Baker involved a clerk’s administration of a vague statute as opposed to statutes or constitutional provisions that are facially discriminatory. Contemporary same-sex marriage cases should be decided on their merits and not at all influenced by a one-line summary disposition from a completely different era of the marriage equality movement.

This Note argues that both Jewish and American law express skepticism about self-incriminating statements based on concerns of reliability, respect for the individual, and the religious belief that confessions can be offered only to God. However, both traditions also recognize that certain circumstances necessitate the use of self-incriminating statements. This Note compares the two traditions to unearth a deep tension within legal and cultural conceptions of self-incrimination and confession. Specifically, the Note proposes that both Jewish and American law reflect conflicting desires—to simultaneously accept and reject self-incriminating statements. On the one hand, confessions appear to be powerful evidence of guilt, as well as a helpful part of the process of punishing and rehabilitating criminal offenders. On the other hand, confessions uncomfortably turn the accused into his own accuser, raising concerns about whether the confession was the result of unreliable internal self-destructive instincts or external coercion. Future decisions involving self-incriminating statements must be made with an awareness of both the benefits and the hazards of utilizing such statements.

In recent years, the Supreme Court has increasingly made “reasonableness” the central inquiry of whether a search or seizure is constitutional under the Fourth Amendment. The rise of the reasonableness approach has coincided with originalist scholarship that claims this interpretation is more consistent with the Amendment’s text and history. This Note looks at Framing-era search-and-seizure practice and argues that the Court’s modern reasonableness interpretation is, in fact, ahistorical and inconsistent with Framing-era practice and the Amendment’s original understanding. Not only is there scant evidence that the legality of searches and seizures turned on their reasonableness during the Framing era, but the arguments made in favor of the Court’s modern reasonableness approach are based on flawed historical assumptions. As a result, the Court’s various applications of its reasonableness interpretation are all inconsistent with Framing-era practice and the Amendment’s original understanding.

In 2004, the Supreme Court overhauled the established interpretation of the Confrontation Clause of the Sixth Amendment when it decided Crawford v. Washington. This Note attempts to augment the existing literature by elucidating the Crawford standard in the context of terrorism prosecutions in Article III courts. It details the shifts between Ohio v. Roberts and Crawford, analyzes subsequent federal case law, and tests the new framework on hypothetical terrorism fact patterns. This Note anticipates that for some types of evidence, such as ex parte affidavits and written summaries of testimony, the Crawford test will create significant hurdles for prosecutors in terrorism cases. A viable solution to this problem is for the government to make greater use of witness depositions abroad pursuant to Federal Rule of Criminal Procedure 15(c)(3).

The routine booking exception permits police officers and agents to ask certain questions—typically biographical inquiries such as an arrestee’s name, age, and address—in the absence of the Miranda warnings. Since its introduction in Pennsylvania v. Muniz, the exception has been inconsistently defined. This Note addresses the various formulations of the routine booking exception and focuses on the increasingly utilized administrative-centric tests. It concludes that a purely administrative approach to routine booking should be rejected.

The problem of changed circumstances recurs throughout constitutional law. Statutes often outlive the conditions they were meant to address. A once-reasonable law may come to impose burdens that the legislature never intended and would not now be willing to impose. This Note asks whether courts are ever permitted to step in and declare that, as a result of postenactment changed circumstances, a once-valid law can no longer be constitutionally applied. It argues that the propriety of changed circumstances review depends first on whether the applicable doctrinal test is substantive or motives-based. A substantive test is one that imposes an absolute prohibition on certain categories of legislation, or requires a particular degree of fit between legislative means and ends. A motives-based test asks only whether the enacting legislature intended to further an impermissible objective. This Note demonstrates that where the underlying test is substantive, a reviewing court must at least consider whether circumstances have sufficiently changed since the challenged law’s enactment to justify striking it down. If the test is motives-based, then the court should generally consider only whether the statute is valid based on facts as they existed when it first went into effect.

Tourism is an increasingly important source of capital in numerous developing nations, and it accounts for an inflow of nearly $1.4 billion to Guatemala each year. Yet tourism also carries with it negative side effects, principally environmental and cultural degradation. International NGOs working in Guatemala tout a preservationist brand of tourism, yet anthropologists and environmentalists have documented how the tourism industry—and the NGOs that compose it—continually fall short of preservationist goals. This Note suggests that a solution to the industry’s harms lies in private regulation, specifically in a tourism-specific code of conduct. This Note demonstrates how a code would fit within the industry’s current regulatory scheme, explains why the NGOs that dominate the industry would adhere to a code, and identifies specific provisions that should be included in a code to directly target tourism’s environmental and cultural harms.

Foreign law has become an increasingly important element of many cases brought before federal courts. Rule 44.1, which controls determinations of foreign law, is intended to make the process for determining foreign law as painless as possible, but like the regime that preceded it, it has become a procedural minefield for those wishing to rely on foreign law, as courts have declined to apply Rule 44.1 when it should be used, either deliberately or due to uncertainty as to its application. This is in large part due to the lack of concrete standards outlined in the rule. This Note examines the standards associated with the rule and their application in the years immediately after its promulgation and concludes that the reliant party’s burden of production with respect to foreign law should vary based on whether statutory text is provided. If a statute is available, the courts should be required to undertake a Rule 44.1 analysis, while if a statute is unavailable, the reliant party should bear the burden of producing substantial evidence of foreign law. This standard, elaborated in the text of Rule 44.1, should ensure that as many foreign law determinations as possible can be resolved on the merits.

The Supreme Court recently revisited the doctrine of specific personal jurisdiction for the first time in decades in J. McIntyre Machinery, Ltd. v. Nicastro, which resulted in a fractured opinion, a flurry of critical scholarship, and uncertainty on the lower courts. This Note argues that the principal significance of Nicastro lies in the sensitivity of the Breyer concurrence to the problems modernity poses for jurisdictional doctrine and its concomitant willingness to reevaluate the doctrine. Lower courts and litigants should see the case as an invitation to address such “modern concerns” in jurisdictional analysis within the bounds implied by Justice Breyer. This Note proposes that the jurisdictional problem of an interconnected globalized economy is the same as that posed by the Internet—the novel and increasingly pervasive fact of nonspecific purposeful availment of transjurisdictional contacts—and that such contemporary circumstances necessarily erode the utility of minimum contacts analysis as a consistent and fair limitation on personal jurisdiction, such that a more robust implementation of fairness balancing must become the engine of the doctrine.