I promise you this essay is about Dan Markel. It’s painful, still, to talk or to write about him. This is a memorial, a remembrance—so I’ll tell you how I remember Dan. I don’t know how, exactly, to explain his impact on my life. But it’s prototypical, I think, of the impact he had on the lives of many of the people who encountered him, so I’m going to try and back my way into it.
A TRIBUTE TO PROFESSOR DAN MARKEL
Keith L. Savino
The day I first met Professor Dan Markel I was prepared to walk into his office and tell him I was dropping his class. I was enrolled in his Sentencing Law and Policy seminar but had also recently been invited to become a member of the Florida State University Law Review. As a new member, I was required to write a lengthy. student note, and I decided that completing papers for both Professor Markel’s seminar and the Law Review in the same semester would be too burdensome and well beyond my capacity. In my mind, dropping Professor Markel’s course was the obvious choice to lighten my workload.
DAN MARKEL’S PREMATURE DEATH CEMENTS HIS UNCOMPROMISING LEGACY
“You know, they say to never be late with a cup of coffee in your hand.” Two seconds prior, I stumbled through the door of Professor Dan Markel’s Criminal Procedure: Adjudication class, thermos in hand, one or two minutes late. The door to our classroom was noisy, and the audience was limited to about ten, so all eyes pounced on me as I abruptly entered the room. Under Markel’s scrutiny, I immediately blurted my excuse: “traffic.” Although my excuse was true, Markel’s immediate and witty rebuttal proved it to be illegitimate—I should have skipped making coffee.
THE ILLUSION OF AUTONOMY IN WOMEN‘S MEDICAL DECISION-MAKING
Jamie R. Abrams
This Article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman‘s autonomy. This Article instead considers the far more common scenario when women and their doctors align in the face of great decision-making complexity and uncertainty. What decision-making framework normalizes this doctor-patient alignment, and how does this decision-making framework complicate the actualization of autonomy for the women who do not elect this framework? This Article concludes that many, if not most, of the four million women who birth in hospital settings attended by physicians align with their doctors by applying a shared decision-making framework that presumptively elects the outcome that minimizes any, even minor, risks to the fetus. While individual patients can certainly elect this approach autonomously, when understood in the context of tort law—in which the actions of ―most women‖ and ―most doctors‖ can become the standard of care itself—this framework is deeply concerning.
PARTITIONING AND RIGHTS: THE SUPREME COURT‘S ACCIDENTAL JURISPRUDENCE OF DEMOCRATIC PROCESS
James A. Gardner
In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account—a theory—of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost immediately occupied. But the Court filled its jurisprudential hole not primarily by invoking principles of democracy—even unstated ones—but by doing instead what reluctant decision makers often do: by reaching for whatever is handy. In a path-dependent series of small but fateful steps, the Court’s reaction took two main forms. First, in the absence of a pertinent theory to guide it, the Court fell back on habit, specifically a habit, developed in its earliest cases, of solving problems of political power and representation by partitioning the electorate—that is, by ordering it subdivided. By resorting reflexively to this approach, the Court soon came to treat partitioning as the preferred solution to most problems of democratic representation. Second, the Court reached for the tools of decision that were most ready at hand, and those tools were individual rights, initially equal protection, then the freedoms of speech and association. But because these tools were ill-suited to the task, the Court ended up stretching First Amendment analysis in these cases beyond its plausible bounds and purposes. A well-ordered democratic state needs a thoughtful and deliberate jurisprudence of democracy and democratic practice. Instead, the Court has provided an accidental, haphazard jurisprudence of habit and availability.
COPYRIGHT‘S MERCANTILIST TURN
Glynn S. Lunney, Jr.
Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Unable to establish that broader copyright will lead to more or better original works, as the Constitution and the traditional economic framework require, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Rampant unauthorized copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. Whether or not it leads to more or better works, broader copyright will increase revenue to copyright owners and thus increase employment in the copyright industries. This increased employment, on its own, justifies broader copyright, or so proponents contend. In this Article, I critically reexamine this argument and show that it is empty.
THE COST OF AVOIDANCE: PLURALISM, NEUTRALITY, AND THE FOUNDATIONS OF MODERN LEGAL ETHICS
This Article offers an answer to key questions in modern American legal ethics: when and why did the legal profession stop talking about professional conduct in moral terms? Mining the history of current rules governing lawyer conduct, this Article reveals that while the 1969 Model Code of Professional Responsibility sought to revolutionize legal ethics by creating a professional code that was more transparent, democratized, and less hierarchical than the preceding 1908 Canons of Legal Ethics, that effort also excised a moral understanding of lawyering in order to facilitate a particular understanding of pluralism.
WORK MADE FOR HIRE—ANALYZING THE MULTIFACTOR BALANCING TEST
Authorship of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer, not the employee, being the author and initial copyright owner. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. Three years later, in 1992, the Court of Appeals for the Second Circuit decided Aymes v. Bonelli and noted that not all factors are equally weighted and that five of the factors would ―be significant in virtually every situation.‖ This analysis was supported by looking at all the work made for hire cases decided in the three year period since Reid—six cases in total. This Article expands in both scope and time what the Second Circuit did in Aymes and systematically analyzes how courts have utilized the factors in the twenty-five years since Reid. In particular, this study has identified the universe of cases where the courts have decided whether a hired party was an employee or independent contractor and uses the data from these cases to describe what factors appear to be the most and least important in reaching these conclusions. Based on the results of this study, this Article proposes a continuum of importance, which graphically illustrates the relative importance of each factor.
THE FAILURE AND FUTURE OF LAKE OKEECHOBEE WATER RELEASES: A QUASI-GOVERNMENTAL SOLUTION
Jacquelyn A. Thomas
The events that unfolded during the summer of 2013 with respect to Lake Okeechobee and the surrounding estuaries are tragic and unacceptable. The St. Lucie River and Caloosahatchee River estuaries were devastated after the Army Corps of Engineers (Army Corps) released billions of gallons of polluted fresh water from Lake Okeechobee into the estuaries during a particularly rainy season. The outdated Herbert Hoover Dike surrounding Lake Okeechobee can only withstand so much water pressure, and with water levels approaching the maximum level of safety, the Army Corps chose to release lake water into the estuaries to the east and west rather than risk a breach of the dike, which would flood cities and farmland to the south.