CORK Bibliography: Court Cases
45 citations. January 2010 to present
Prepared: December 2012
Baek TH; Mayer M. Sexual imagery in cigarette advertising before and after the Master Settlement Agreement. Health Communication 25(8): 747-757, 2010. (68 refs.)This study examines how the sexual imagery in cigarette magazine advertisements changed as a result of the 1998 Master Settlement Agreement (MSA). After conducting a content analysis of 657 unduplicated cigarette ads from 1994 to 2003, our results revealed that cigarette advertisements featuring suggestive/partially clad female models increased significantly from the pre-MSA period (16.0%) to the post-MSA period (24.9%). In addition, we provide empirical evidence that there was an overall increase in sexually explicit cigarette advertising after the MSA. Several implications for policymakers are discussed in detail.
Copyright 2010, Lawrence Erlbaum Associates
Chapman S. Legal action by big tobacco against the Australian government's plain packaging law. (editorial). Tobacco Control 21(2): 80-81, 2012. (11 refs.)
Ciliberto F; Kuminoff NV. Public policy and market competition: How the Master Settlement Agreement changed the cigarette industry. Contributions to Economic Analysis & Policy 10(1): article 63, 2010. (45 refs.)This paper investigates the large and unexpected increase in cigarette prices that followed the 1997 Master Settlement Agreement (MSA). We integrate key features of rational addiction theory into a discrete-choice model of the demand for a differentiated product. We find that following the MSA firms set prices on a more elastic region of their demand curves. Using these estimates, we predict prices that would be charged under a variety of industry structures and pricing rules. Under the assumptions of firms' perfect foresight and constant marginal costs, we fail to reject the hypothesis that firms collude on a dynamic pricing strategy.
Copyright 2010, Berkeley Electronic Press
Clark TT; Sparks MJ; McDonald TM; Dickerson JD. Post-Tobacco Master Settlement Agreement: Policy and practice implications for social workers. Health & Social Work 36(3): 217-224, 2011. (34 refs.)The 1998 Tobacco Master Settlement Agreement (MSA) was developed between states and tobacco manufacturers to settle the states' lawsuits against tobacco manufacturers and recover tobacco health-related costs. States won billions of dollars and concessions regarding how tobacco products could be advertised. The purpose of the MSA was to prevent cigarette smoking and compensate for health expenses incurred in the treatment of tobacco smoking related illnesses. Twelve years after the settlement, it is clear that MSA monies have been gravely diverted from tobacco prevention and cessation programs to balance budgets. The authors' review indicates that increases in funding for state tobacco prevention and cessation programs reduce tobacco use across all populations. Implications for social policy and social work practice are offered.
Copyright 2011, National Association of Social Workers
Correll MA. Is there a doctor in the (station) house? Reassessing the constitutionality of compelled DWI blood draws forty-five years after Schmerber. West Virginia Law Review 113(Winter): 382-415, 2011. (172 legal refs.)The vast majority of Fourth Amendment jurisprudence of the last century has been dedicated to parsing the physical and intangible boundaries of the home, developing the expectation of privacy, and, as of late, exploring the constitutional implications of an increasingly electronic society. In the midst of this development, one major area has quietly fallen by the wayside -- the preservation of bodily integrity. As technology has rendered the human body an ever-increasing source of crucial evidence, the Supreme Court has remained largely silent on the government's power to harvest information through medical procedures. Since the Court's consideration of the constitutionality of compelled blood draws in Schmerber v. California, 384 U.S. 757 (1966), the Fourth Amendment questions attendant to bodily evidence have been largely left to the states. This Article examines a narrow subset of that state-level development: non-consensual DWI blood draws. A review of the state statutory and jurisprudential applications of Schmerber reveals increasing disagreement over the scope of the Fourth Amendment when police seek to recover fleeting evidence of blood alcohol content. Based on this review, this Article suggests a number of policy proposals designed to better insure police stay within the Fourth Amendment strictures of Schmerber while also procuring the most effective evidence possible.
Copyright 2011, West Virginia Law Review
Crosbie E; Sebrie EM; Glantz SA. Strong advocacy led to successful implementation of smokefree Mexico City. Tobacco Control 20(1): 64-72, 2011. (100 refs.)Objective To describe the approval process and implementation of the 100% smokefree law in Mexico City and a competing federal law between 2007 and 2010. Methods Reviewed smokefree legislation, published newspaper articles and interviewed key informants. Results Strong efforts by tobacco control advocacy groups and key policymakers in Mexico City in 2008 prompted the approval of a 100% smokefree law following the WHO FCTC. As elsewhere, the tobacco industry utilised the hospitality sector to block smokefree legislation, challenged the City law before the Supreme Court and promoted the passage of a federal law that required designated smoking areas. These tactics disrupted implementation of the City law by causing confusion over which law applied in Mexico City. Despite interference, the City law increased public support for 100% smokefree policies and decreased the social acceptability of smoking. In September 2009, the Supreme Court ruled in favour of the City law, giving it the authority to go beyond the federal law to protect the fundamental right of health for all citizens. Conclusions Early education and enforcement efforts by tobacco control advocates promoted the City law in 2008 but advocates should still anticipate continuing opposition from the tobacco industry, which will require continued pressure on the government. Advocates should utilise the Supreme Court's ruling to promote 100% smokefree policies outside Mexico City. Strong advocacy for the City law could be used as a model of success throughout Mexico and other Latin American countries.
Copyright 2011, BMJ Publishing
Daynard RA; LeGresley E. Product liability. Tobacco Control 21(2): 227-228, 2012. (3 refs.)Product liability litigation has made important contributions to tobacco control, especially by uncovering incriminating industry documents and publicizing product dangers and industry misconduct. WHO Framework Convention on Tobacco Control (FCTC) Article 19 encourages Parties to strengthen legal procedures to facilitate these lawsuits and to establish mechanisms for mutual assistance. Creative lawyers will continue to find ways to bring the tobacco industry to justice in forums around the world.
Copyright 2012, BMJ Publishing
Dodemaide A. No entiendo: State v. Marquez, language barriers and drunk driving. Rutgers Journal of Law & Public Policy 9(Spring): 624-664, 2012. (209 legal refs.)Summary: ... Because Officer Lugo felt that the response was ambiguous, he read an additional statement to Marquez: I have previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the
content of alcohol in your blood." ... The purpose of New Jersey's implied consent law and refusal law is to help police officers acquire evidence for convictions of Driving Under the Influence (DUI) offenses; before those laws were enacted, enforcement of drunk driving laws was being undermined by a high rate of refusals. ... If a state's goal when enacting its implied consent and refusal laws was to ensure that drivers submit to breath tests, the state does not further its policy goals if it does not try to ensure that drivers understand the consequences of refusal. ... Finally, by increasing the penalty of refusal and by requiring blood tests when a breath test is refused, states can expect to see a decline in refusal rates.
Copyright 2012, Rutgers University
Doukas D. In a bet there is a fool and a state monopoly: Are the odds stacked against cross-border gambling? European Law Review 36(2): 243- 263, 2011. (28 refs.)The latest case law of the Court of Justice on cross-border gambling perpetuates the status quo, which precludes any mutual recognition and allows Member States to maintain de jure or de facto state monopolies on public interest grounds. However, the Courts' deferential approach and its interpretation of the red lines drawn on the Member States' discretion are not devoid of inconsistencies or inherent contradiction. The Court is not always keen to declare incompatible with the Treaty any measures that manifestly exceed the boundaries of national discretion and, overall, remains reluctant to apply a rigorous proportionality test to national regulation of gambling. As regards the requirement that such regulation consistently serves the public interest, the Court seems to adopt a broadly construed consistency test and a relatively lax approach to a sectoral evaluation of the consistency of national policy concerning the concrete games offered by a state monopoly. This contrasts with its more rigorous approach to an overall assessment of the consistency of national gambling policy, including games that are excluded from a state monopoly.
Copyright 2011, Sweet Maxwell Ltd
Fabel J. Social host liability: Chapter 154 seeks to hold adults accountable for serving alcohol to minors. McGeorge Law Review 42: 488-508, 2011. (79 legal refs.)Sunmmary: ... Earlier that night, Sean attended two parties where adults allowed minors to drink alcohol. ... The California Legislature believes that if adults are civilly liable for the harm caused by serving alcohol to minors, they will be less inclined to tolerate underage drinking. ... Courts reasoned that the customer's voluntary consumption of alcohol was the proximate cause of the harm, as opposed to the act of supplying alcohol by the vendor. ... Chapter 154, known as the "Teen Alcohol Safety Act of 2010," creates an exception to the rule that social hosts who serve alcohol to minors are immune from civil liability for all harm resulting from the consumption of that alcohol. ... However, important questions about how courts will define the scope of liability arise because other states have defined "knowingly furnishes" in different ways. ... However, in the absence of statutory guidance, courts will determine if adults who knowingly serve alcohol to minors are also designing to inflict injury, and are thus acting willfully under section 533 of the Insurance Code . ... The sponsors and supporters of this bill hope that Chapter 154 will save young lives by holding parents and other adults responsible for the harm caused by serving alcohol to minors.
Copyright 2011, University of the Pacific, McGeorge School of Law
Fanning C. Potential reforms in the area of criminal punishment. Defining Intellectual disability: Fetal Alcohol Spectrum Disorders and capital punishment. Rutgers Law Record 38: 1+, 2010. (132 legal refs.)Summary: ... it is unconstitutional to execute a mentally retarded person, but empowered the individual states with the ability to define "mental retardation." ... During the penalty phase of the trial, the defense argued that Brandy Holmes suffered from Fetal Alcohol Syndrome and that her condition diminished her mental capacity and adversely affected her ability to make decisions. ... Brandy Holmes' mother revealed that she had regularly used alcohol while she was pregnant with Holmes' and, in fact, that she named her daughter after her favorite alcoholic drink that she would consume during that pregnancy. ... Considering the behavioral problems, the difficulty in diagnosing FASD, the ability of its victims to hide their disorder, and the unknown prevalence of these conditions, it would be reasonable for the justice system to contemplate the limitations of certain definitions of mental retardation and reconsider how they apply capital punishment. ... If the Supreme Court had granted certiorari in Holmes, they would have been able to consider the severe limitations that FASD places on individuals and seen that, although it produces people with the same litany of problems that exempted Daryl Atkins, the victims of this condition do not fit within the inappropriate and rigid definitions that states generally have adopted. ... A more fluid approach that considered the specific limitations of each defendant and how they affect the culpability of that defendant and whether, with their disabilities, capital punishment would serve its state purposes.
Copyright 2010, Rutgers Law Record
Fentiman LC. Rethinking addiction: Drugs, deterrence, and the neuroscience revolution. University of Pennsylvania Journal of Law and Social Change 14(2): 233-272, 2011. (288 legal refs.) ... While scientists have long recognized that alcoholism and other types of substance abuse seem to run in families, today it is clear that the genetic contribution to addiction is highly complex, affecting both an individual's biology and personality - thus one's genes may increase or decrease the risk that one will try drugs, use them frequently, become tolerant of their effects, seek more of them, and relapse. ... Behavioral researchers have offered persuasive evidence that changes in the brain caused by drug exposure need not be permanent, and that incentives and other behavioral interventions may encourage addicts to end their dependence on drugs. ... Treatment for Pregnant Drug Users As is the case with other women who use drugs, pregnant drug users face many barriers to obtaining competent, integrated health care that addresses their mental and physical health needs, as well as their substance abuse. ... If offenders act impulsively, or under the influence of drugs or alcohol, their beliefs about punishment risks may have less impact on their behavior. 3) A potential offender must believe that there is a non-negligible risk of being caught... . ... Research on drunk driving makes clear that the best predictor of recidivism (in which deterrence has implicitly failed) is the severity of the driver's addiction: more severely addicted individuals are less likely to be responsive to the risk of future apprehension and sentence. ... The third, fourth, and fifth factors relevant to deterrence also suggest that pregnant drug users are unlikely to respond to marginal increases in the threat that a criminal sanction will be imposed if they do not change their behavior.
Copyright 2011, Trustees of the University of Pennsylvania
Fishbain DA; Lewis JE; Gao JR. Medical malpractice allegations of iatrogenic addiction in chronic opioid analgesic therapy: Forensic case reports. (editorial). Pain Medicine 11(10): 1537-1545, 2010. (41 refs.)Objectives. The objectives for presenting these medico-legal forensic case reports are the following: 1) detail three cases where chronic opioid analgesic therapy (COAT) was alleged to cause iatrogenic addiction and/or re-addiction; 2) detail the plaintiff's and defendant's medical experts' opinions on these allegations; and 3) through analyzing these cases, develop some recommendations for future prevention of such allegations during COAT. Methods. Case Reports. Results. Medico-legal issues surrounding the allegation of iatrogenic addiction were identified in each case. Conclusions. Before starting COAT, physicians should obtain and document patient informed consent for the risk of addiction/re-addiction with COAT treatment. Patients with a history of addictions pre-COAT should be placed on adherence monitoring immediately on beginning COAT.
Copyright 2010, Wiley-Blackwell
Friedman LC. Tobacco industry use of corporate social responsibility tactics as a sword and a shield on secondhand smoke issues. Journal of Law, Medicine & Ethics 37(4): 819-827, 2009. (15 refs.)The tobacco industry has used corporate social responsibility tactics to improve its corporate image with the public, press, and regulators who increasingly have grown to view it as a merchant of death. There is, however, an intractable problem that corporate social responsibility efforts can mask but not resolve: the tobacco industry's products are lethal when used as directed, and no amount of corporate social responsibility activity can reconcile that fundamental contradiction with ethical corporate citizenship. This study's focus is to better understand the tobacco industry's corporate social responsibility efforts and to assess whether there has been any substantive change in the way it does business with regard to the issue of exposure to secondhand smoke. The results show that the industry has made no substantial changes and in fact has continued with business as usual. Although many of the tobacco companies' tactics traditionally had been defensive, they strove for a way to change to a more offensive strategy. Almost without exception, however, their desire to appear to be good corporate citizens clashed with their aversion to further regulation and jeopardizing their legal position, perhaps an irreconcilable conflict. Despite the switch to offense, in 2006 a federal judge found the companies guilty of racketeering.
Copyright 2009, American Society of Law, Medicine & Ethics
Griffin OH; Miller BL. OxyContin and a regulation deficiency of the pharmaceutical industry: rethinking state-corporate crime. Critical Criminology 19(3): 213-226, 2011. (44 refs.)On May 10, 2007, three executives of the pharmaceutical company Purdue Pharma pled guilty in federal court to misleading doctors and patients about the risk of addiction and potential for abuse of OxyContin. Additionally, Purdue Pharma paid over $600 million in fines and other payments to the United States government and the Commonwealth of Virginia. The drug OxyContin was first introduced to the market in December of 1995. Warning signs of the drug's potential for abuse were almost immediate, and there were reports of copious amounts of the drug being diverted into the black market for recreational use. In some cases, criminologists have argued that if the government fails to protect its citizens from the harm of a corporation then such behavior should be considered state-corporate crime. We critically evaluate the case of OxyContin to see if it falls under the state-corporate crime paradigm. Further, we argue the state-corporate crime paradigm can benefit from an increased focus on the organizational structures of regulation agencies.
Copyright 2011, Springer
Gundle KR; Dingel MJ; Koenig BA. 'To prove this is the industry's best hope': Big tobacco's support of research on the genetics of nicotine addiction. Addiction 105(6): 974-983, 2010. (95 refs.)Background: New molecular techniques focus a genetic lens upon nicotine addiction. Given the medical and economic costs associated with smoking, innovative approaches to smoking cessation and prevention must be pursued; but can sound research be manipulated by the tobacco industry? Methodology: The chronological narrative of this paper was created using iterative reviews of primary sources (the Legacy Tobacco Documents), supplemented with secondary literature to provide a broader context. The empirical data inform an ethics and policy analysis of tobacco industry-funded research. Findings: The search for a genetic basis for smoking is consistent with industry's decades-long plan to deflect responsibility away from the tobacco companies and onto individuals' genetic constitutions. Internal documents reveal long-standing support for genetic research as a strategy to relieve the tobacco industry of its legal responsibility for tobacco-related disease. Conclusions: Industry may turn the findings of genetics to its own ends, changing strategy from creating a 'safe' cigarette to defining a 'safe' smoker.
Copyright 2010, Society for the Study of Addiction to Alcohol and Other Drugs
Henningfield JE; Hatsukami DK; Zeller M; Peters E. Conference on abuse liability and appeal of tobacco products: Conclusions. and recommendations. (editorial). Drug and Alcohol Dependence 116(1-3): 1-7, 2011. (54 refs.)The rate of initiation and progression to dependence and premature mortality are higher for tobacco products than for any other dependence producing substance. This is not explained simply by the addictiveness ("abuse liability") or by enticing product designs ("product appeal") alone, but rather by both of these factors in combination with marketing and social influences that also influence "product appeal". A working meeting of leading experts in abuse liability (AL) and product appeal was convened to examine how these disciplines could be more effectively applied to the evaluation of tobacco products for the purposes of regulation that would include setting standards for designs and contents intended to reduce the risk of initiation and dependence. It was concluded that abuse liability assessment (ALA) is a validated approach to testing pharmaceutical products but has not been extensively applied to tobacco products: such application has demonstrated feasibility, but special challenges include the diverse range of products, product complexity, and the absence of satisfactory placebo products. Consumer testing for product appeal is widely used by consumer product marketers as well as by researchers in their efforts to understand consumer product preferences and use but has not been extensively applied to tobacco products except by the tobacco industry. Recommendations for testing, methods development, and research were developed. A major recommendation was that tobacco products should be tested for AL and product appeal, and the results integrated and evaluated so as to more accurately predict risk of initiation, dependence, and persistence of use.
Copyright 2011, Elsevier Science
Houle B; Siegel M. Smoker-free workplace policies: Developing a model of public health consequences of workplace policies barring employment to smokers. Tobacco Control 18(1): 64-69, 2009. (77 refs.)A marked shift in tobacco-related workplace health promotion intervention involves the adoption of policies barring employment to smokers. We discuss the potential public health consequences of these policies on those affected-smokers, their families, the surrounding community and society at large. We find a lack of published evidence evaluating the effectiveness and consequences of these policies. By developing a model of policy effects, we outline possible unintended consequences. With such large gaps in the evidence base and the potential for deleterious consequences, we argue for increased discussion about the use of smoker-free employment policies as a public health intervention and for increased engagement of employers by the public health community in worksite health promotion.
Copyright 2009, BMJ Publishing Group
Kosman MAH. Falling through the crack: How courts have struggled to apply the crack amendment to "nominal career" and "plea bargain" defendants. Michigan Law Review 109(5): 785- 812, 2011. (9 refs.)In 2007, after a decade of debate, the U.S. Sentencing Commission instituted an amendment that decreased the sentences of some defendants who had been convicted of crack-cocaine-related offenses. A few months later, the Sentencing Commission passed another amendment that rendered it retroactive. Nearly three years after the passage and retroactive application of the "crack amendment," however, two separate circuit splits have emerged as courts have struggled to uniformly interpret and apply the Sentencing Commission's directives. The first circuit split emerged regarding the eligibility of a subset of "career offenders" to the benefits of the retroactive application of the crack amendment. The second circuit split emerged over the question whether a subset of defendants who pled guilty to crack offenses pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) prior to the passage of the crack amendment are eligible to receive the benefits of its retroactive application. This Note first argues that the language of the applicable statutes and policy statements and the specific actions taken by the Sentencing Commission indicate that the subset of "career offenders" in the first circuit split are not eligible for a subsequent reduction in the sentence pursuant to the crack amendment. This Note argues, however, that the lack of explicit directives from the Sentencing Commission regarding the "plea bargain" defendants in the second circuit split indicates that these defendants are eligible to receive the benefits of the retroactive application of the amendment. Because the Sentencing Commission instituted and rendered retroactive the crack amendment to decrease the disparity in sentence between defendants convicted of crack and powder cocaine offenses, it would be contrary to the purpose of the amendment to exclude these defendants from its benefits.
Copyright 2011, Michigan Law Review Association
Landry L. Social Security and Supplemental Security Income Disability Cases Involving Alcohol or Drug Use: Developments in the Last Decade. Clearinghouse Review: Journal of Poverty Law and Policy 45: 146, 2011. (22 refs.)Fifteen years after Congress prohibited receiving social security disability benefits where drug or alcohol abuse is a "material factor" in the disability, the Social Security Administration has yet to promulgate regulations implementing the prohibition. Instead the agency relies on subregulatory instructions and policy statements. Advocates should become familiar with the intricacies of these statements and instructions. ... That legislation, which resulted in the creation of the abbreviation DAA (drug addiction and alcoholism), allowed disability benefit eligibility where drug or alcohol abuse was material to the disability finding, but the legislation mandated treatment, required that benefits be paid through a representative payee, and limited receiving of benefits to three years. ... The 1996 Contract with America Advancement Act eliminated those restrictions and simply prohibited eligibility for disability benefits where drug addiction or alcoholism is material, leaving only 20 G.F.R. ... Fifteen years later the Social Security Administration still has not promulgated revised regulations implementing the Act's drug addiction and alcoholism provisions, and the irrelevant sections of the 1995 regulations remain on the books. ... Instead the agency posted revised subregulatory instructions and policy statements on both its public website, www.socialsecurity.gov, and its internal website, PolicyNet. ... In its sweeping rejection of EM 96-300 the Parra court's analysis of the deference due agency subregulatory policy statements suggested that the court was seeking ways to discount EM 96-300's potential binding effect. ... Courts have occasionally ruled on when unpromulgated subregulatory instructions bound agency decision makers and the deference that federal courts should give these instructions. ... The practical result will be that many beneficiaries with drug abuse and alcoholism conditions will be determined to require a representative payee, but, unlike those required to receive benefits through a payee, these beneficiaries may appeal payee determinations and submit evidence of their ability to manage their benefits.
Copyright 2011, Sargent Shriver National Center on Poverty Law
Lebowitz D. "Proper subjects for medical treatment?" Addiction, prison-based drug treatment and the Eighth Amendment. DePaul Journal of Health Care Law 14(Spring): 271-309, 2012. (192 legal refs.)The Supreme Court has held that deliberate indifference to prisoners' serious medical needs violates the Eighth Amendment's prohibition on cruel and unusual punishment. This article argues that, because both courts and the medical community have consistently acknowledged that addiction is a disease, there may well be a basis in constitutional law for people in prison to claim a constitutional right to prison-based drug treatment. Summary: ... He also disputes the analogies advanced by disease concept adherents between addiction and chronic diseases like diabetes, noting that the "symptoms" of addiction (compulsive drug use) are coterminous with the definition of the disease itself. ... The dispute among commentators, then, is most salient on the issue of whether the effects of drug addiction are sufficient to mitigate criminal culpability, and not whether drug addiction profoundly affects the behavior of addicts. ... United States , held that testimony relating to narcotic addiction provided a basis from which the jury, under proper instructions, could have found (but was not required to find) a causal relationship between the defendant's drug-related "abnormality" and the charged offenses of purchasing drugs without a tax stamp and facilitating the concealment and sale of drugs with knowledge that they were illegally imported. ... A close examination of the "deliberate indifference to serious medical needs" standard shows that there is no legally principled distinction between drug treatment and other forms of medical care that are constitutionally mandated in prison settings, given the extensive support in case law for a disease conception of addiction. ... In short, " courts should not be afraid to step out of narrow methadone precedent and examine. . . dependence disorder in a new light, as a medical illness requiring treatment rather than a moralist debate." ... Given the terrible suffering endured by many addicts, the social and economic costs of addiction and drug-related crime to the public at large, and the long history of the "disease concept" in America, we may wonder why the provision of drug treatment to prisoners is at all controversial.
Copyright 2012, DePaul University
Lyons RA. Florida's disregard of due process rights for nearly a decade: Treating drug possession as a strick liability crime. St. Thomas Law Review 24(Spring): 350-381, 2012. (206 legal refs.)Summary ... Oedipus is held strictly liable for the murder of his father and incestuous relations with his mother without any inquiry into his mens rea. ... As public welfare offenses gained momentum, courts became progressively confused as to when a public welfare offense is permissible and not overreaching and when mens rea should be a fundamental requirement for federal crimes adopted from the common law. ... Florida's Drug Abuse Prevention and Control Law -- Since the issue of mens rea and strict liability crimes has yet to be resolved by the United States Supreme Court, it comes as no surprise that state criminal statutes lacking the element of mens rea are constantly challenged as unconstitutional. ... The Element of Mens Rea in Section 893.13 Florida's Drug Abuse Prevention and Control Law, Florida Statutes, section 893.13 provides, inter alia: (6) (a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription... . ... For example, since Shelton, Judge Milton Hirsch, from the Eleventh Judicial Circuit of Florida, dismissed forty-two drug possession cases and Judge Scott Brownell, from the Twelfth Judicial Circuit, dismissed forty-two drug possession cases. ... The State in Shelton argued that Morissette and Staples did not apply the Due Process Clause of the United States Constitution, in relation to strict liability offenses.
Copyright 2012, St. Thomas Law Review
MacKenzie RP; Bromberg CC Jr. Jury misconduct: What happens behind closed doors. Alabama Law Review 62(3): 623-644, 2011. (162 legal refs.)Summary ... While not a frequent issue, those occasions when juror misconduct occurs are often the result of: (1) juror experiments; (2) unauthorized juror field trips; (3) other independent juror research (e.g., looking up legal terms in the dictionary, visiting the public library, etc.); (4) juror use of alcohol and/or drugs; (5) improper discussions among jurors during trial and deliberations; and (6) juror use of electronic media, such as e-mail and the Internet. ... The court held the experiment constituted reversible error because it introduced new evidence "crucial in resolving a key material issue" into the case (i.e., whether the defendant was physically capable of removing the cocaine from his pocket) and the experiment clearly affected the verdict. ... In its opinion, the court distinguished the case from Ex parte Lasley because the facts of the experiment were not communicated to other jurors before the verdict was rendered, whereas they were communicated before the rendering of the verdict in Lasley. ... The next day, one of the jurors revealed definitions to the terms "negligence, contributory negligence, subsequent negligence, and subsequent contributory negligence" that he had looked up in an encyclopedia. ... Under Alabama law, debates and discussions among jurors during deliberations, such as jurors relating their personal experiences to other jurors and reading from their notes, may not constitute grounds for a new trial as long as jurors have not obtained the information discussed from some process outside the scope of trial. ... In an effort to combat the dangers of sites such as Facebook and Twitter, the Alabama Pattern Jury Instructions Committee recently approved Model Jury Instructions forbidding jurors from using electronic media to research or communicate about a case during trial.
Copyright 2011, University of Alabama
Mandaglio LA. The punitive pregnancy matrix: Thinking critically about the patriarchal motivations behind child abuse prosecutions for prenatal drug use among American mothers. The Digest: National Italian American Bar Association Law Journal 19: 27-45, 2011. (78 legal refs.)Summary: ... Applications and Inferences of the Punitive-Pregnancy Matrix In Welch, the court expressed concern over the "slippery-slope" effect of prosecutions for prenatal substance abuse, pointing to the potential for these prosecutions to expand into more invasive laws to protect the health of unborn children, like anti-abortion laws and statutes against maternal alcohol consumption or even physical exercise. ... Dimension A Applications: Revealing that Maternal Prosecutions for Prenatal Child Abuse Are Limited to Matrix Category III Factors Of the innumerable factors affecting fetus welfare during pregnancy, criminal prosecutions of mothers for prenatal child abuse only target those existing within the third category of factors identified in the Punitive Pregnancy Matrix (i.e. factors foreign but internal to the mother, like drug use). ... Similarly, women are not successfully prosecuted in the United States for unknowingly transmitting genetic defects to children (matrix Category I) or accidently exposing themselves to environments that risk fetus health (matrix Category IV). ... As will be discussed with regard to Category III factors (e.g. cocaine, alcohol, and infectious disease exposure in utero), an existing legal framework condemning certain conduct in everyday life is necessary for successful child abuse prosecutions of that conduct during pregnancy. ... Thus, the question remains: why are contemplated genetic harms against infants (Category I factors) tolerable but prenatal drug-related harms against infants (a Category III factor) intolerable, particularly if the genetic harm has long-lasting and debilitating physical ramifications for the child?
Copyright 2011, National Italian American Bar Association
McAdams RH. Present bias and criminal law. University of Illinois Law Review 5(1607-1631), 2011. (76 refs.)Although "present bias" (or weakness of will, impulsiveness, myopia, or bounded willpower) was flagged as an issue for legal examination by Tom Ulen and Russell Korobkin over a decade ago, the concept has received insufficient attention in the legal field and most of that attention has focused on its implications for the regulation of credit and savings. But, as demonstrated by this Article, the inconsistency of time preferences has wider implications, especially for criminal law. First, present bias may have significant implications for the general deterrence of crime. Individuals with time-inconsistent preferences may give in to immediate temptations to offend, even though they will not plan to exploit more distant opportunities to offend. To create additional deterrence by exploiting the present bias, one must either make the deferred costs of crime immediate or make the immediate benefits of crime deferred. For this reason, present bias heightens the importance of timing arrests closer to the commission of a crime-which suggests overlooked benefits from undercover operations. It also increases the efficiency of private crime prevention when these measures pose costs that occur contemporaneously with the benefits of crime. Second, present bias explains addiction, otherwise puzzling conditions of probation and parole, and the self-control mechanisms for dealing with addiction and tempting criminal behavior. Preventative measures, whether imposed by the state as a condition of probation and parole or imposed by the potential offender through "self-exclusion," work by preventing an individual from having the opportunity to succumb to temptation.
Copyright 2011, University Illinois
Moran TJ. Just a little bit of history repeating: The California model of
marijuana legalization and how it might affect racial and ethnic minorities. Washington and Lee Journal of Civil Rights and Social Justice 17(Spring): 557-589, 2011. (176 legal refs.)Summary. ... Lawmakers therefore classified marijuana as a narcotic, unlike its counterpart drugs, alcohol, and cigarettes. ... As Martin Booth explains, "Anslinger had by his ranting alienated a large section of the ethnic-minority population of the USA which was, marijuana aside, largely law abiding. ...Further, by end of President Carter's term of office eleven states had passed some form of a marijuana decriminalization law. ... And therein lies an even greater irony: "while marijuana laws are primarily designed to protect drug users from themselves, arrest and criminal justice processing is for many users the most substantial risk of using marijuana. " Moreover, if prison is not a bad enough consequence for use or possession, a person convicted of growing marijuana may face even harsher collateral sanctions. ... The Marijuana Policy Project, perhaps the largest and most organized of all marijuana advocacy groups, makes these arguments for the legalization of marijuana in reference to minority groups: Drug abuse is a real problem for minority communities. ... The scenario would result in either individuals growing their own personal marijuana at the potency level they like, or individuals going elsewhere -- elsewhere meaning illegal drug dealers--resulting in an illicit market for marijuana all over again. ... Perhaps minorities should create an initiative maintaining marijuana prohibition, but rather than incarcerating its violators, promising to rehabilitate them with treatment.
Copyright 2011, Washington and Lee University
Mosher JF. Litigation and alcohol policy: Lessons from the US tobacco wars. (review). Addiction 104(Supplement 1): 27-33, 2009. (19 refs.)This paper explores the role of litigation in preventing alcohol-related harms, identifying lessons from the use of litigation in tobacco control policy in the United States. It analyzes the key components of litigation in an international context, provides a case study of its potential use in addressing the marketing of alcopops to youth and offers recommendations for pursuing litigation strategies in future alcohol policy efforts. The paper's analyses are based on both original and secondary legal research. State and federal case law and secondary sources are reviewed in assessing lessons learned from tobacco litigation in the United States and the potential role of litigation in alcohol policy, both in the United States and internationally. Assessment of alcohol litigation cases and state and federal laws and regulations provides the foundation for the alcopops case study. The tobacco litigation experience demonstrates that litigation is a powerful tool in addressing aggressive marketing by purveyors of addictive products such as alcohol. To be effective at both national and international levels, litigation should encompass a broad array of legal tactics designed to identify and restrict unfair, deceptive and misleading alcohol marketing tactics and should be utilized in conjunction with complementary prevention strategies. Research conducted on the impact of alcohol marketing on youth alcohol consumption and problems is needed to support potential litigation claims. Developing litigation expertise within the alcohol policy field and building collaboration with litigation specialists in tobacco control should also be considered a high priority.
Copyright 2009, Society for the Study of Addiction to Alcohol and Other Drugs
Myers DM. Annual survey of Pennsylvania administrative law. Administrative agency statutory interpretation: Malt Beverages Distributors Ass'n v. Pennsylvania Liquor Control Board: The Supreme Court of Pennsylvania's failure to give the required deference to an administrative agency and accurately interpret the liquor code. Widener Law Journal 20: 437-453, 2011. (108 legal refs.)Summary. ... The PLCB's main functions include "control ling the manufacture, possession, sale, consumption, importation, use, storage, transportation and delivery of liquor, alcohol and malt or brewed beverages in accordance with the provisions of this act" in addition to "grant ing and issu ing all licenses and . . . granting , issuing , suspending and revoking all permits authorized to be issued under this act." ... Ohio Springs proposed to sell alcohol in the restaurant and operate a convenience store in the same establishment, with no physical division between the two. ... Another section "of the Liquor Code . . . provides restrictions on a retail dispenser's purchase and sale of beer and states that ' the retail dispenser may . . . sell or dispense beer for consumption on or off the premises so licensed.' " According to Ohio Springs, this part of the Liquor Code, creates an either/or test for selling alcohol for on-site or off-site consumption and the lower court should have considered this in its decision. ... MBDA maintained the argument that there is no either/or language in the statute that would lead to the conclusion that the retail dispenser gets to decide whether to sell for on-site or off-site consumption and, instead, believed on-site consumption to be a prerequisite for selling takeout. ... The first justification is insufficient because the court failed to read the definition section, which defines retailer dispensers, with reference to other provisions referring to retail dispensers, after the court originally stated that it "must read all sections of the statute 'together and in conjunction with each other.' " Reading section 1-102, which defines retail dispensers, along with section 4-442, which provides the restrictions placed on retail dispensers, it becomes evident that the legislature intended an either/or test, allowing for retailers to dispense alcohol for on-site consumption or for off-site consumption.
Copyright 2011, Widener University School of Law
Owsley BL. Issues concerning charges for driving while intoxicated in Texas Federal Courts. St. Mary's Law Journal 42: 411-454, 2011. (297 legal refs.)Summary: ... Pursuant to congressional authority, the Secretary of the Interior has issued regulations specifically criminalizing driving while intoxicated: Operating or being in actual physical control of a motor vehicle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or (2) The alcohol concentration in the operator's blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath. ... If convicted of any of the offenses, including driving while intoxicated, a defendant faces up to one month in jail, a $ 5,000 fine, a $ 10 special assessment, and a term of probation not to exceed five years. ... Historically, Congress defined a petty offense as "any misdemeanor, the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $ 500, or both." ... Subsequently, the Supreme Court in Blanton and Nachtigal categorically expanded petty offenses to cover charges for driving while intoxicated where the maximum penalty is six months in jail. ... The defendant then appealed to the Ninth Circuit and argued the following: The portions of the California Vehicle Code providing for suspension of driver's licenses are not incorporated into federal law by virtue of the Assimilative Crimes Act, and that the suspension of his California driver's license by a federal magistrate is an impermissible interference with that state's regulation of its highways. ... Moreover, a federal judge lacks the authority to prohibit a United States Attorney's Office and the Clerk's Office from reporting a federal conviction for driving while intoxicated to the appropriate state motor vehicle department officials.
Copyright 2011, St. Mary's University of San Antonio
Perez-Diaz C; Hure MS. Heavy drinking and the disposition of intimate partner violence cases in French courts. Drug and Alcohol Review 30(5, special issue): 490-495, 2011. (9 refs.)Introduction and Aims. In 1992, France passed a specific penal law on intimate partner violence. The present study explores the functioning of this new law by examining the characteristics of perpetrators in cases that were tried rather than dismissed. Additionally, the characteristics of heavy drinkers were compared with those of non-heavy drinkers. Design and Methods. We analysed all cases of intimate partner violence processed in the years 1999-2000 by a major court of the Paris metropolitan area. Data were collected on 223 perpetrators (all 166 tried perpetrators and 10% of the 570 perpetrators whose case was dismissed) and how cases were handled institutionally. Logistic regression was used to identify perpetrator characteristics significantly associated with being tried (vs. dismissed) and being a heavy drinker. Results. Being tried was significantly more likely if the perpetrator had inflicted an injury, engaged in prior aggression and was a heavy drinker. Heavy drinking perpetrators were significantly more likely than non-heavy drinkers to have been drinking before the act. They were less likely to be under 40, more likely to be French, part of a stable couple and to have engaged in various types of prior aggression. Discussion and Conclusions. In 2000, heavy drinking was associated with increased risk of being tried and with drinking before the act. Heavy drinkers are more likely to have committed all forms of aggression, but only verbal aggression is significant. In 2000, judges gave heavy drinkers harsher sentences and a 2007 law sanctioned them even more severely. Our results suggest that treatment focused on problem drinking could be a helpful response-perhaps more so than harsher sentences-to intimate partner violence.
Copyright 2011, Wiley-Blackwell
Quigley KC. Uncorking Granholm: Extending the nondiscrimination principle to all interstate commerce in wine. Boston College Law Review 52(5): 1871-1907, 2011. (307 legal refs.)Abstract: In a landmark 2005 decision, Granholm v. Heald, the U.S. Supreme Court ruled that states could not constitutionally discriminate in interstate commerce by permitting in-state wineries to ship directly to customers while prohibiting the same for out-of-state wineries. States previously had argued, with some success historically, that the Twenty-first Amendment authorized them to regulate liquor as they pleased--without Commerce Clause interference. Granholm seemed to clearly establish, once and for all, that "the Twenty-first Amendment does not supersede other provisions of the Constitution." Several recent federal courts of appeals, however, have refused to heed this clear message when confronted with challenges to laws discriminating against out-of-state wine retailers. This Note argues that a simple Commerce Clause analysis should apply to discrimination against all out-of-state business interests, regardless of their status with respect to the traditional three-tier regulatory system.
Copyright 2011, Boston College School of Law
Rich BA; Webster LR. A review of forensic implications of opioid prescribing with examples from malpractice cases involving opioid-related overdose. (review). Pain Medicine 12(2 apecial issue): S59-S65, 2011. (17 refs.)Objective. To provide a forensic overview and trace common threads among malpractice lawsuits involving patients who overdosed while consuming therapeutic opioids. Methods. One of us (LRW) reviewed 35 medical records of patients with chronic pain who overdosed, 20 of them fatally, while consuming therapeutic opioids, leading to lawsuits against physicians for malpractice. The reviews were requested by plaintiff and defense attorneys from across the United States from 2005 to 2009 to ascertain which drug(s) were primarily responsible for each death and whether the death was due to physician error, patient nonadherence, or some other reason. Complaints against pharmaceutical companies were excluded. Cases were examined for common trends, and comment is offered. Results. Methadone was responsible for the most deaths at 10 (50%), and hydrocodone was second at four deaths (20%) The most common risk factors found in the medical records of decedents included prescriber error in initiating, converting or titrating doses, patient nonadherence to medical instruction, presence of comorbid mental disorders, toxicological presence of benzodiazepines, middle age, and unrelieved pain. This article focuses on examples of physician errors and how they can be prevented. Conclusions. Common trends emerge from medical records of opioid decedents. Patient actions contribute, but physician error, particularly regarding prescribing methadone for pain, is apparent as well. A focused effort to determine the types and causes of common physician errors and how they might be avoided may lead to safer, more effective clinical interventions in the management of pain.
Copyright 2011, Wiley-Blackwell
Russoniello K. The devil (and drugs) in the details: Portugal's focus on public health as
a model for decriminalization of drugs in Mexico. Yale Journal of Health Policy, Law, and Ethics 12(Summer): 373-431, 2012. (323 legal refs.)Summary: ... In 2001, Portugal decriminalized possession of all drugs for personal consumption and has since reported positive results in combating drug addiction, related health problems, and drug trafficking. ... Next, Part II will examine Mexican drug legislation before decriminalization and the violence, public health problems, and other social consequences associated with drug use and trafficking. ... This Part will address the different approaches to decriminalization in Portugal and Mexico and will ultimately argue that Mexico could achieve decreased rates of drug use and drug-related disease, a reduction in prison populations, and an increase in resources for enforcement against large-scale drug trafficking if Mexico were to adopt a model similar to the one in Portugal. ... Second, it encouraged the creation of specific harm reduction programs that directly targeted the health-related dangers of drug use, such as shelters for homeless drug users and needle exchanges all over the country. ... This separation is likely to encourage users to seek treatment voluntarily; reduce the burden of drug use cases on the courts; decrease corruption, extortion, and human rights abuses; and refocus law enforcement efforts on large-scale drug trafficking. ... An advantage of the Portuguese system is that experts in the field of drug addiction, and not judges with limited knowledge in this field, determine whether a drug possession offense has occurred and whether the offender is addicted. ... Assuming that arrest power for drug possession offenses has been removed, police officers will not be able to target users and addicts who possess amounts below the maximum - removing or limiting their ability to threaten offenders with incarceration if they fail to produce a bribe. ... Additionally, changes to the Mexican law could still increase penalties for traffickers, reinforcing the objective of identifying and dismantling drug-trafficking organizations while providing more resources for drug users. ... In order to fully effectuate its strategy, Portugal increased overall funding for drug policy implementation, increased the number of public treatment and harm reduction facilities, and established CDTs in every region of the country
Copyright 2012, Yale Journal of Health Policy, Law, and Ethics
Sharkey R. Rohlfs v. Klemenhagen, LLC: Is it time to revise Montana's Dram Shop Act? Montana Law Review 72(Winter): 127-149, 2011. (208 legal refs.)Summary: ... The Court ruled that an injury from drunk driving is a foreseeable, intervening act that does not relieve an alcohol provider from dram-shop liability. ... As introduced, the Bill sought to: (1) reduce the statute of limitations for dram-shop claims from three years to two years; (2) allow for evidence of criminal charges filed against an intoxicated consumer to be introduced at trial; (3) eliminate the ability of a consumer or his estate to make a dram-shop claim; (4) cap noneconomic and punitive damages at $ 250,000; and (5) permit the jury to consider the consumption of alcohol, in addition to its provision, when determining the cause of injuries suffered by a plaintiff. ... Senate Bill 337 drew considerable support from the tavern industry, the insurance industry, the Montana University System, and the Montana Chamber of Commerce. ... Justice Nelson chronicled the history of dram-shop liability in Montana and concluded that the Dram Shop Act did not statutorily create dram-shop liability; rather, it limited the cause of action created in Nehring. ... Rather than fulfilling its intended purpose of preserving evidence in dram-shop cases, the notice requirement eliminated Cary Rohlfs's meritorious cause of action against the Stumble Inn despite the fact the owners knew about the crash, the injury, and that a consumer they had served was responsible.
Copyright 2011, The University of Montana School of Law
Shepherd T. Michigan's wine shipping restrictions: A valid use of Twenty-first Amendment control or sleight of hand legislation discriminating against the free market? University of Detroit Mercy Law Review 88(Spring): 583-610, 2011. (231 legal refs.) ... Allowing out-of-state retailers to ship direct to in-state consumers promotes the original reason for the enactment of the three-tier system: to protect against "tied houses" where the manufacturers (wineries) controlled the retailers. ... Under the Twenty-first Amendment, a state can discriminate against interstate commerce if the discrimination promotes the core concerns of the Twenty-first Amendment. ... Idlewild Bon Voyage Liquor Corp., the Court held that even though the states have the power to regulate alcohol within their borders, the Twenty-first Amendment did not repeal the Commerce Clause. ... The Court rejected the argument concerning minors because: 1) minors are less likely to consume wine, as opposed to beer, wine coolers, and hard liquor; 2) minors who decide to disobey the law have more direct means of doing so; and 3) direct shipping is an imperfect avenue for minors because they want instant gratification. ... However, the same bottle of wine the consumer could purchase from the winery is now unobtainable due to Michigan's shipping restrictions.
Copyright 2011, University of Detroit Mercy School of Law
Shrestha HL. Feasibility of tobacco product liability litigation in Uganda. Invited commentary. (editorial). Tobacco Control 21(2): 229-229, 2012. (1 refs.)
Slepchuk PA. Social host liability and the distribution of alcohol and narcotics: A survey and guide. Suffolk University Law Review 44: 933-971, 2011. (311 refs.) ... The court recognized a cause of action for social host liability under the doctrine of negligence per se based on an alleged violation of a Florida statute making it a crime for an adult to host an open house party and knowingly allow minor guests to possess or consume alcoholic beverages or drugs. ... The first shields social hosts from liability for furnishing alcohol to visibly intoxicated persons; the other statute specifically exposes licensed vendors to liability for selling alcohol to visibly intoxicated persons. ... The consumer of alcohol may not bring a claim against the alcohol provider for injuries sustained as a result of the consumer's intoxication unless "(a) the consumer was under the legal age and the furnishing person knew or should have known that the consumer was under age; or (b) the furnishing person forced or coerced the consumption or told the consumer that the beverage contained no alcohol while knowing that it did contain alcohol." . ... In so holding, the court reached an interesting result whereby a social host who actively furnishes alcohol to underage guests is exempt from liability for any resulting injuries, but a social host who merely provides the setting for underage drinking may be held liable for any resulting injuries to third parties and to the minor drinkers themselves. . When someone uses an illegal narcotic and dies as a result, the person who provided the narcotic may face severe criminal penalties. But if the family of the deceased brings a civil action against the narcotics provider, a remedy may not be available. How can a distributor of narcotics be subjected to strict criminal punishment on one hand, and be free from civil liability on the other?
Copyright 2011, Suffolk University
Smith JW. Alaska Law Review 29(June): 93-111, 2012. (54 legal refs.)In July 2004 Anchorage, Alaska started one of the first veterans courts in the United States. That court has now been in continuous operation for over seven years. This Comment briefly describes the steps taken to establish the Alaska Veterans Court and how the court operates. An overview of the characteristics of participants in and graduates from the court is provided, followed by statistics concerning the effect of the court on recidivism. Several potential future areas of study concerning this court are also identified. The Comment concludes by highlighting the importance of the court and by noting that the benefits provided by the court are currently limited by the absence of funding from any source. Summary: ... To assist in presiding over the court and covering hearings in his absence, Judge Murphy recruited the author of this Comment ... Individuals are referred by the Veterans Court to these courts either when the individuals are not eligible for Veterans Court or when their particular problems are more appropriately addressed in another therapeutic court. ... Operation of the Veterans Court. The Alaska Veterans Court provides participants the ability to receive multi-disciplinary treatment and assistance for issues contributing to their involvement in the criminal justice system. ... A review of forty-six treatment plans contained in Veterans Court files indicates that thirty-one individuals required alcohol treatment, twenty-seven required mental health treatment, and sixteen required access to the VA domiciliary to facilitate their treatment by providing housing. ... He spent twelve months in Veterans Court and was removed from probation upon successful completion of the VA alcohol treatment program. ... For purposes of this Comment, recidivism is defined as a new criminal offense or a formal petition to revoke probation within one to three years of: (1) graduation from Veterans Court; (2) failure to complete Veterans Court; or (3) electing not to enter Veterans Court. ... A possible explanation for the lower recidivism rate, as compared to Veterans Court graduates, is that individuals choosing not to enter Veterans Court were charged with relatively minor offenses. ... If available, that information could be compared with court records on criminal activity to identify veterans charged with misdemeanors who chose not to contact the Veterans Court.
Copyright 2012, Alaska Law Review
Stanzione NJ. Granholm v. Heald: Wine In, Wit Out. Widener Law Review 17: 95-126, 2011. (279 legal refs.)Summary: ... In the same opinion, the Supreme Court read Webb-Kenyon "simply to extend that which was done by the Wilson Act, that is to say, its purpose was to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in States contrary to their laws," thereby "afford ing a means by subterfuge and indirection to set such laws at naught." ... In Bacchus, Hawaii liquor wholesalers brought suit to challenge the state's liquor tax, which imposed a 20% excise on all liquor at wholesale except for certain locally produced beverages (pineapple wine and okolehao). ... Because the Twenty-First Amendment does not explicitly mention the dormant Commerce Clause, Scalia refused to consider that the amendment may allow states to regulate even to the point of interfering with the clause. ... Some states now restrict direct shipping to "small" wineries, a category that likely has a sneaky protectionist purpose but is not facially discriminatory, or at least makes such discrimination harder to prove. ... Most discomfiting of all is not that Michigan and New York's direct shipment policies were struck down-so-called "economic Balkanization" has been distasteful to our nation since the Founding-but that the Kennedy majority seemed to even abandon the gesture of special deference to states over alcohol announced in North Dakota; the Granholm Court barely bothered to ask if Michigan and New York had in mind "core" Twenty-first Amendment concerns.
Copyright 2011, Widener University School of Law
Stokes AQ; Rubin D. Activism and the limits of symmetry: The public relations battle between Colorado GASP and Philip Morris. (review). Journal of Public Relations Research 22(1): 26-48, 2010. (107 refs.)Litigation has forced tobacco companies like Philip Morris to disclose more than 7 million internal documents, including previously confidential public relations plans. We draw from this archive, as well as from activist materials, to demonstrate that, despite vigorous industry efforts to thwart them, activists in this case employed strategies of values advocacy and inoculation and capitalized on economic benefits to persuade publics. This watershed case poses continued challenges for the 2-way symmetrical or mixed-motive theoretical model of public relations. Accounting for public relations activism and understanding its voice in influencing contemporary public debate requires that scholars move beyond this widely accepted model that stresses compromise between activists and organizations. An alternative rhetorical theory of activist public relations is posited to account for groups that refuse to accommodate opponents.
Copyright 2010, Taylor & Francis
Stuart S. War as metaphor and the rule of law in crisis: The lessons we should have learned from the War on Drugs. Southern Illinois University Law Journal 36(Fall): 1-43, 2011. (231 legal refs.)Summary: Any number of public policy debates have been framed in terms of metaphorical war, none longer or as expensive as the War on Drugs. This article explores the very real harms in militarizing public policy debates by examining a small slice of the War on Drugs, that part of the War waged in schools. Dangerous and violent rhetoric spurred the public to engage in this War, which eventually targeted children as the enemy. As a consequence of that rhetoric, Congress spent billions of dollars on useless strategies while courts suspended children's civil rights. Throughout all this, we failed to examine the ethical obligations we undertake when we engage in war, even if metaphorically. Today, politicians and pundits try to evade responsibility for using rhetoric by claiming they are only talking in metaphors. However, the Culture War they are waging has become so much less metaphorical and more literal than even the War on Drugs became. The abstract is becoming real, and we need to have a better understanding of the natural consequences of what we say, especially as the two sides in the "war" struggle for control over the rule of law.
Copyright 2011, Board of Trustees of Southern Illinois
Tetelbaum E. A sobering look at why Sunday liquor laws violate the Sherman Act. Utah Law Review 2011: 625-650, 2011. (167 refs.)Summary: ... The Twenty-First Amendment: How It Relates to the Commerce Clause While the anticompetitive effects of Sunday closing laws can be described generally, because antitrust is a very industry-specific discipline, this Article focuses on alcohol restrictions to make the argument that Sunday liquor laws are in violation of the Sherman Antitrust Act. ... The legacy of Midcal is that the states no longer have such unrestricted power over the regulation of alcohol that they can ignore federal interests. ... Sunday liquor laws typically treat sales for on-premise and off-premise consumption differently, granting market power to licensed restaurants, hotels, and bars to sell alcohol when liquor stores, grocery stores, and gas stations cannot. ... The Texas Supreme Court summarily rejected the challenge to the legislation, granting Texas Parker immunity: "Congress, by enacting the Sherman Act, did not intend to prohibit a valid exercise of the police power of the States, as this Court has held the statute in question to be." ... The slight increase we observed may, in fact, correspond to a health benefit, because drinking was more evenly smoothed across the days of the week.
Copyright 2011, Utah Law Review Society
Tumwine J. Feasibility of tobacco product liability litigation in Uganda: invited commentary. (editorial). Tobacco Control 21(2): 228-229, 2012. (2 refs.)
Wilson AJ. Discovery of breathalyzer source code in DUI prosecutions. Washington Journal of Law, Technology & Arts 7(Fall): 122-133, 2011. (54 legal refs.)In driving under the influence (DUI) cases, prosecutors habitually rely on the results from breathalyzer tests as proof of the defendant's blood alcohol level at the time of arrest. ... Nearly all courts to consider the issue distinguish Underdahl on the basis of this contractual agreement, treating possession of the source code as the dispositive factor in compelling discovery. ... Absent such circumstances, the court held that Levine "offered no evidence that the Intoxilyzer software was created for Fargo or that Fargo owned the code. ... As these cases illustrate, states with seemingly flexible criminal procedure rules invariably arrive at a similar result as the majority: breathalyzer source code is generally not subject to discovery because it is not in the state's possession, custody, or control, and the state is not better-positioned to acquire the proprietary information. ... This trend in turn favors the proprietary rights of breathalyzer manufacturers by sheltering access to breathalyzer source code.
Copyright 2011, University of Washington
Yap PJ. The "dead" constitution: Crime and punishment in Singapore. Hong Kong Law Journal 40(Part 3): 577- 591, 2010. (13 refs.)In Yong Vui Kong v Public Prosecutor, the Singapore Court of Appeal recently reaffirmed the constitutionality of the mandatory death penalty for drug trafficking offences under the Misuse of Drugs Act. Specifically, the Singapore Court held that the judicial obligation to impose a capital sentence, once guilt for the drug offence was so established, was neither a violation of the accused's constitutional right against the deprivation of his life in accordance with law nor a denial of his right to equal protection under the law. In this article, the author argues that, whilst one may be sympathetic to their Lordships for reaching the result they did, in light of the political realities underpinning Singapore's constitutional arrangement, the legal arguments advanced by the Court of Appeal for their decision unfortunately do not withstand close scrutiny.
Copyright 2010, Sweet Maxwell Ltd