CURRENT ISSUE
VOLUME 87, NUMBER 5
April 2009

Articles

The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims

by Tom Lininger

This Article examines courts' treatment of forfeiture doctrine in the wake of the Supreme Court's decision in Giles v. California. Prior to Giles, courts in most jurisdictions held hearsay statements admissible whenever a declarant's silence was procured by an accused's wrongdoing. Giles, however, interprets the Confrontation Clause to bar admission of such evidence, unless the prosecution can show that the wrongdoing was specifically motivated by a desire to prevent the declarant's testimony. Professor Lininger considers the likely ramifications of this decision for victims of domestic violence and domestic homicide. He proposes a new judicial framework for approaching forfeiture doctrine as well as a modification of evidentiary rules, which together would permit courts and legislatures to comply with Giles while still protecting victims of domestic violence.


Putting Probability Back into Probable Cause

by Max Minzner

In his Article, Professor Max Minzner advocates for a novel change to the search-warrant acquisition process. When police officers apply for a warrant or conduct a probable-cause search, courts do not consider the individual officers' historical success rates in making such searches. Max Minzner argues that this data, along other data, such as the success rate of an officer's unit, should be considered in courts' probable-cause analyses. Minzner maintains that applying information about the relative success of past searches can help to prevent unfruitful searches and increase the likelihood of discovering admissible evidence.

Book Review

Three Theories of Religious Equality...and of Exemptions

Review of:
Martha Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality

Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution

Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism

Reviewed by Abner S. Greene

Abner Green reviews Martha Nussbaum's recent book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality, and in doing so attempts to illuminate the foundations of religious equality in America. Greene also compares Nussbaum's view of equality in the Religion Clauses to the views presented by Christopher Eisgruber and Lawrence Sager in Religious Freedom and the Constitution, and Brian Barry in Culture and Equality: An Egalitarian Critique of Multiculturalism. Greene also considers the broader question of how we grant religious exemptions from otherwise applicable law; he explores how both Nussbaum and Eisgruber and Sager characterize such exemptions.

Notes

The Need for a Refined Balancing Approach When American Discovery Orders Demand the Violation of Foreign Law

by Keith Y. Cohan

Expansive discovery is one of the hallmarks of modern American litigation. But what happens when uncovering important information requires the violation of foreign law? Courts face two important questions: whether to issue discovery orders that could subject litigants to criminal sanctions, and in the case of noncompliance, whether to impose sanctions on such litigants. In this Note, Keith Cohan examines the conflicts that arise and how courts attempt to resolve them, and discusses alternative solutions.


Current Case: American Council of the Blind v. Paulson— U.S. Currency and Disability-Discrimination Law

by Emily Falconer

Emily Falconer considers American Council of the Blind v. Paulson, a recent D.C. Circuit decision in which the court agreed that the current design of U.S. currency discriminates against the blind, thus violating the terms of § 504 of the Rehabilitation Act. Falconer argues that there is an even more powerful, constitutional basis for demanding the redesign of U.S. currency. Falconer argues that future litigation over U.S. currency should be resolved under the Due Process Clause.

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Responses to Lininger's Sound of Silence

In the latest update to See Also, a number of professors respond to Professor Tom Lininger's Article, The Sound of Silence, in the current issue of Texas Law Review. These responses build off Professor Lininger's work and challenge some of his conclusions, as well as delve further into the Giles opinion and related precedents. Here is a preview of what is discussed:

Professor James F. Flanagan explains that he disagrees with Professor Lininger's approach to the forfeiture issue, and in particular opposes the use of bright-line tests to satisfy Giles' inferred intent standard.
Professor Cheryl Hanna explains why she believes Professor Lininger's article is so important: it develops a test for getting around the problem created by the Supreme Court for the prosecution of domestic violence murders.
Professor Andrew King-Ries explores Professor Lininger's proposed solution to the conundrum created by the Supreme Court's decision in Giles v. California regarding forfeiture by wrongdoing in the domestic violence context; he agrees that bright-line rules for inferring a defendant's intent to prevent his victim from testifying are the right approach, but finds Lininger's proposed rules incomplete.
Professor G. Kristian Miccio focuses on two important moral dilemmas highlighted by the Court"s decision in Giles v. California: "(1) whether a search for truth should be sacrificed to our notions of Due Process; and (2) whether Giles's protection of the accused is premised on beliefs tainted by sexism."
Professor Myrna S. Raeder examines the major claims in Professor Lininger's article, agreeing with some but not all of his suggestions; for instance, she explains why Professor Lininger's per se rules should be expanded to include two other categories: proof that the defendant has an abusive personality, and proof that the decedent suffered from Post Traumatic Stress Disorder.
Professor Deborah Tuerkheimer advances the notion of "control killings," or viewing domestic violence homicide as the final act in a pattern of various forms of abusive conduct; she also addresses the complex issues raised by Lininger's third rule—inferring intent to silence a victim from a history of abuse and isolation


Responses to Minzner's Putting Probability Back into Probable Cause

Professors Craig S. Lerner and Lawrence Rosenthal comment on Professor Max Minzner's Article in the current issue of Texas Law Review. Lerner takes issue with a number of points made by Minzner, such as whether courts consider officer success rates in the form of "officer experience" and whether incorporating these rates will actually make the probable cause determination more accurate. He asserts that Minzner does not fully support this claim because the article does not fully develop the meaning of probable cause. The comment explores some possibilities and problems associated with various conceptions of the term, as well as a number of other issues raised by Minzner's proposals.
Professor Rosenthal agrees that success rates of officers should be taken into account in making probable cause determinations, but points out one area that Professor Minzner may have overlooked: the problem of overdeterrence of valid searches that pose a less than exceptional chance of success. He suggests that this should be a cause for great concern because a decrease in the number of searches in high-crime areas could lead to a substantially higher crime rate, especially violent crime. Finally, Rosenthal discusses solutions that could avoid such problems without having to abandon Minzner's proposal.


Response to Roin's Unpatentable Drugs and the Standards of Patentability

Professor Outterson comments on Professor Benjamin Roin's Article from Issue 3 of the current Volume of Texas Law Review. In his Article, Professor Roin exposes a significant flaw in the current patent system that, he argues, presents a significant impediment to pharmaceutical innovation: socially valuable drugs often cannot be patented and are therefore unlikely to be developed for public use. This flaw, according to Roin, is the result of two requirements of the patent system—novelty and nonobviousness—coupled with the massive R&D costs necessary to develop a new drug in a way that satisfies the FDA’s safety and efficacy standards.
Professor Outterson challenges Professor Roin's argument that pharmaceutical innovation and public health are harmed by the patent doctrines of non-obviousness and novelty. He argues that obscure or accidental publications are not actually pushing too many inventions into the public domain and thus substantially limiting the patent eligibility of subsequent pharmaceutical inventions. Outterson particularly disputes Roin's use of the pain medication Ultracet as an example of such harm. After reviewing the factual circumstances surrounding the drug's design, the patent application process, and subsequent litigation challenges, he concludes that: the disclosure of the prior art that limited Ultracet's patentability was not inadvertent; that Ultracet was successfully patented and commercialized notwithstanding the public domain (and did not unduly suffer from free riding); and that ultimately Ultracet was not a particularly valuable drug. The Ultracet case explored in this comment raises very interesting counterpoints to Roin's claims concerning the real-world harms caused by the non-obviousness and novelty doctrines.