Archive for the ‘Academic Articles’ Category

International Manufacturers Beware: Foreign Evidence in American Products Liability Law

September 13, 2010 Leave a comment

One benefit of globalization is that businesses and people can more easily sell their goods and services in the world market.  In the context of manufacturing, companies who export products to foreign countries are frequently required to modify their product lines to conform to foreign laws and standards.  In some instances, manufacturers are compelled to produce two alternative products—one intended for domestic sale and the other for international.  These alternative product designs, manufactured to comply with diverse safety requirements, may have direct repercussions to manufacturers in American courts related to products liability lawsuits.

In order to prove a design defect in products liability law, most jurisdictions in the United States rely on a risk-utility test as enunciated in the Restatement (Third) of Torts.  The risk-utility test balances the degree of risk a certain design poses to consumers versus the utility of that design.  Plaintiffs must prove that there are reasonable substitute designs for a product, and the risk imposed on the consumer outweighs any utility of the allegedly defective design.

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Categories: Academic Articles

An Appeal-Resistant Recognition of Fundamental Rights

August 9, 2010 Leave a comment


  • Judge Vaughn Walker of the Northern District of California recently ruled that the U.S. Constitution gives same-sex couples the right to marry.
  • The opinion rested first on the Due Process Clause, finding that marriage is a fundamental right and concluding that our contemporary understanding of marriage encompasses same-sex marriage.
  • The opinion also rested on the Equal Protections Clause and rejected all proffered state interests in limiting same-sex marriage as irrational.
  • Importantly, the opinion relied not on conclusions of law but instead on appeal-resistant findings of fact.
  • Though a backlash to granting same-sex marriage rights is possible, the lack of legitimate state interests makes the backlash less likely when compared to the backlash against abortion rights.

This article is by Keith Southam, a 3L from Chicago-Kent.

Proponents of same-sex marriage scored a major victory recently in the federal Proposition 8 case.  Perry v. Schwarzenegger.  No. C 09-2292 VRW (N.D. Cal. Aug. 5, 2010).  In the opinion, Judge Vaughn Walker concludes that the United States Constitution guarantees same-sex couples the right to marry.  His decision is remarkable because of what it concluded, what it did not conclude, and its prospects going forward.

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Miranda’s “Right to Remain Silent”” Doesn’t Mean Remain Silent

The Supreme Court of the United States recently decided a case that is counterintuitive at first glance.  In order for a suspect to invoke their right to remain silent and end any interrogation, they must verbally say that they are going to remain quiet.  While this may seem like a drastic change, it may also be viewed as an alignment with a suspect’s other 5th Amendment right to attorney which must be verbally invoked in order for an interrogation to cease.  This 5-4 decision is in favor of the police and allows officers conducting interrogations to continue those interrogations until they are explicitly told by the suspect that he/she wants to remain silent.  There is less chance for error that a police officer will interpret a suspects silence one way while the suspect himself will interpret it another way, resulting in a question of admissibility of anything divulged during an interrogation.  However, this decision runs counter to Miranda, so it is anyone’s guess as to the overall impact moving forward.  To learn more, please read here.

Public Safety Exception to Miranda Used for Terror Suspects

Justin Elliot over at Talking Points Memo reports on the Obama administration’s use of an exception to Miranda that’s being used in an effort to gain admissible evidence during interrogations of terror suspects before the suspects are read the Miranda warning. TPM reports:

Federal agents questioned both Faisal Shahzad, the man accused of planting a makeshift bomb in Times Square, and Umar Abdulmutallab, the failed Christmas Day bomber, under the so-called public safety exception to the Miranda rule for substantial periods before informing the men of their right to remain silent, and to an attorney.

While the “public safety exception” is grounded in a 1984 Supreme Court decision, the Obama administration’s reliance on the exception in an attempt to obtain admissible evidence over hours of pre-Miranda interrogation appears to be unprecedented.

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America’s War on Drugs

The video below captures everything that is wrong with America’s war on drugs. A SWAT team bursts into the home of a Columbia, MO family, shooting the family’s two dogs in front of young children… all over an insignificant amount of marijuana that led to misdemeanor possession charges.

*The video contains graphic language and content

Equal Protection and Prejudice, Misinformation, and Scaremongering

April 26, 2010 1 comment


  • A challenge to California’s Proposition 8, which took away same-sex marriage, is currently in federal court, which must decide whether and to what extent the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution protects gay men, lesbians, and bisexuals.
  • This group is currently protected from action based on animus under Romer v. Evans under the Equal Protection Clause.
  • Hopefully, the District Court, then the Ninth Circuit, and probably the U.S. Supreme Court will be willing to extend the Equal Protection Clause, providing protections from actions based on prejudice, misinformation, and scaremongering.

This article is by Keith Southam, a 2L from Chicago-Kent.

Recently, Illinois state Representative Greg Harris came to Chicago-Kent to speak about a bill he sponsors to allow civil unions in the state of Illinois. Next door, Iowa recently celebrated one year of permitting same sex marriage. And not long ago, same-sex couples in the nation’s capital started marrying. In contrast to these jurisdictions, California took a notable step in the opposite direction came in the fall 2008 election cycle when a slim majority of Californians voted to prohibit same-sex marriage. California’s ban took the form of a referendum, Proposition 8, that rolled back rights the California Supreme Court had previously granted. Currently, a challenge to that referendum is pending in the Northern District of California. This sort of back and forth is not uncommon. Read more…

Categories: Academic Articles

Len Bias: Drugs, Race, and the Law

April 22, 2010 Leave a comment


  • Len Bias went to the University of Maryland where he was quickly regarded as a “can’t miss prospect” and one of the best players in college basketball.
  • The day after Bias was drafted, he signed a shoe contract with Reebok and went back to the University of Maryland to celebrate with his friends and later died.
  • Congress enacted the Anti-Drug Abuse Act of 1986 known as the “Len Bias Law,” which enacted mandatory sentences for several drugs, which many have found to be unfair.

This article is by Danny Berliant, a 2L from Chicago-Kent.

ESPN recently aired an episode of its new series, 30 for 30, entitled “Without Bias.” The episode was directed by Kirk Fraser.  “Without Bias” is the story of the rise and shocking, sudden fall of a “can’t miss” basketball prospect, Len Bias.  While I knew what happened to Bias, I did not realize how many aspects of society that Bias’ story affected, and I decided to look further into his story… Read more…