DRINKING FROM A DEEP WELL: THE PUBLIC TRUST DOCTRINE AND WESTERN WATER LAW
Carol Necole Brown
American water law reflects the diverse geography and population patterns of this expansive country. In the eastern states, where water is rather abundant, the doctrine of riparian rights dominates water law. The arid western states, in contrast, rejected the doctrine of riparian rights in favor of the doctrine of prior appropriation due to a natural scarcity of water and increasing population growth. The western states provide fertile ground to consider the burdens of a rapidly growing region on already scarce water resources.
RECOGNIZING ODYSSEUS’ SCAR: RECONCEPTUALIZING PAIN AND ITS EMPATHIC ROLE IN CIVIL ADJUDICATION
Jody Lynee Madeira
This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners’ texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications.
STATUTORY MISCONSTRUCTION: HOW THE SUPREME COURT CREATED A FEDERAL ARBITRATION LAW NEVER ENACTED BY CONGRESS
Margaret L. Moses
This Article will focus on how a simple procedural statute enacted to require enforcement of arbitration agreements in federal court has become unrecognizable as the law Congress adopted in 1925. Today, as a result of judicial construction, the Federal Arbitration Act (FAA) reaches much further and imposes itself on a far greater proportion of our citizens than was ever envisioned in 1925. The FAA as interpreted affects statutory rights, consumer rights, and employee rights, as well as state police powers to protect those rights. Today’s statute—which has been construed to preempt state law, eliminate the requirement of consent to arbitration, permit arbitration of statutory rights, and remove the jury trial right from citizens without their knowledge or consent—is a statute that would not likely have commanded a single vote in the 1925 Congress.
AGE AND TENURE OF THE JUSTICES AND PRODUCTIVITY OF THE U.S. SUPREME COURT: ARE TERM LIMITS NECESSARY?
Joshua C. Teitelbaum
This Article examines the relationship between the productivity of the U.S. Supreme Court and the age and tenure of the Supreme Court Justices. The motivation for this Article is the Supreme Court Renewal Act of 2005 (SCRA) and other recent proposals to impose term limits for Supreme Court Justices. The authors of the SCRA and others suggest that term limits are necessary because, inter alia, increased longevity and terms of service of the Justices have resulted in a decline in the productivity of the Court as measured by the number of cases accepted for review and the number of opinions issued per term. On the whole, the empirical findings of this Article do not provide clear support for this assertion.