Table Of Content

INDEX VOLUME 50 1997 INDEX LEADING ARTICLES-AUTHOR INDEX ADLER, ROBERT W.: Unfunded Mandates and Fiscal Federalism: A Critique COENEN, DAN T.: State User Fees and the Dormant Commerce Clause FELDMAN, STEPHEN M.: From Premodern to Modern American Jurisprudence: The Onset of Positivism GOLDSMITH, MICHAEL AND KING, CHAD W.: Policing Corporate Crime: The Dilemma of Internal Compliance Programs KING, CHAD W. AND GOLDSMITH, MICHAEL: Policing Corporate Crime: The Dilemma of Internal Compliance Programs KOTLER, MARTIN A.: Reconceptualizing Strict Liability in Tort: An Overview KOVACIC-FLEISCHER, CANDACE SAARI: United States v. Virginia’s New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and Title VII OSWALD, LYNDAJ.: The Role of the “Harm/Benefita”n d “Average Reciprocity of Advantage” Rules in a Comprehensive Takings Analysis REICHMAN, J.H. AND SAMUELSON, PAMELA: Intellectual Property Rights in Data?........... SAMUELSON, PAMELA AND REICHMAN, J.H.: Intellectual Property Rights in Data? .......... STAUDT, NANCY C.: The Hidden Costs of the Progressivity Debate THEL, STEVE: Statutory Findings and Insider Trading Regulation LEADING ARTICLES-TITLE INDEX FROM PREMODERN TO MODERN AMERICAN JURISPRUDENCE: THE ONSET OF POSITIVISM: Stephen M. Feldman THE HIDDEN COSTS OF THE PROGRESSIVITY DEBATE: Nancy C. Staudt INTELLECTUAL PROPERTY RIGHTS IN DATA?: J.H. Reichman and Pamela Samuelson POLICING CORPORATE CRIME: THE DILEMMA OF INTERNAL COMPLIANCE PROGRAMS: Michael Goldsmith and Chad W. King RECONCEPTUALIZING STRICT LIABILITY IN TORT: AN OVERVIEW: Martin A. Kotler THE ROLE OF THE “HARM/BENEFIT” AND “AVERAGE RECIPROCITY OF ADVANTAGE” RULES IN A COMPREHENSIVE TAKINGS ANALYSIS: Lynda J. Oswald STATE USER FEES AND THE DORMANT COMMERCE CLAUSE: Dan T. Coenen STATUTORY FINDINGS AND INSIDER TRADING REGULATION: Steve Thel UNITED STATES V. VIRGINIA’S NEW GENDER EQUAL PROTECTION ANALYSIS WITH RAMIFICATIONS FOR PREGNANCY, PARENTING, AND TITLE VII: Candace Saari Kovacic-Fleischer UNFUNDED MANDATES AND FISCAL FEDERALISM: A CRITIQUE: Robert W. Adler BOOK REVIEWS PUBLIC CHOICE AND THE FUTURE OF PUBLIC-CHOICE-INFLUENCED LE TART ESSAYS CONSERVATIVES, LIBERALS, ROMANTICS: THE PERSISTENT QUEST FOR CERTAINTY IN CONSTITUTIONAL INTERPRETATION: Frederick Mark Gedicks INDEX PREFACE PROOFITATUS EST PUDDINATIS: Charles H. Warfield SYMPOSIUM: DEFINING DEMOCRACY FOR THE NEXT CENTURY THE SUPREME COURT, VISIBILITY, AND THE “POLITICS OF PRESENCE”: Kathryn Abrams.. STILL LOST IN THE POLITICAL THICKET (OR WHY I DON’T UNDERSTAND THE CONCEPT OF VOTE DILUTION): Larry Alexander THE BLACK PUBLIC SPHERE AND MAINSTREAM MAJORITARIAN POLITICS: Regina Austin FORMAL NEUTRALITY IN THE WARREN AND REHNQUIST COURTS: ILLUSIONS OF SIMILARITY: Rebecca L. Brown DEMOCRACY, MAJORITARIANISM, AND RACIAL EQUALITY: A RESPONSE TO PROFESSOR KARLAN: Christopher L. Eisgruber DEMOCRACY, KULTURKAMPF, AND THE APARTHEID OF THE CLOSET: William N. Eskridge, Jr. NEUTRAL PRINCIPLES: A RETROSPECTIVE: Barry Friedman THE DEMOCRATIC JUDGE: Michael J. Gerhardt ’ ON THE MERITS: A RESPONSE TO PROFESSOR SHERRY: John C.P. Goldberg. ..............+++++ LOSS AND REDEMPTION: VOTING RIGHTS AT THE TURN OF A CENTURY: Pamela S. Karlan ROMER V. EVANS AND DEMOCRACY’S DOMAIN: Jane S. Schacter. ALL THE SUPREME COURT REALLY NEEDS TO KNOW IT LEARNED FROM THE WARREN COURT: Suzanna Sherry THE DYNAMICS OF DEMOCRACY: TRAVEL, PREMATURE PREDATION, AND THE COMPONENTS OF POLITICAL IDENTITY: Nicholas S. Zeppos NOTES-AUTHOR INDEX BRUENS, CRAIG A.: Melting the Plastic Theories: Advocating the Common Law of Fraud in Credit Card Non-dischargeability Actions under 11 U.S.C. § 523(a)(2)A) BRYCE, PETER MICHAEL: Second Thoughts on Second Punishments: Redefining the Multiple Punishments Prohibition DOUGLAS, KEVIN H.: JOLTAs Unmasked: Legal Aid Programs’ Funding Results in Taking of Clients’ Property DUFFY, BRIAN C.: Barring Foul Blows: An Argument for a Per Se Reversible-Error Rule for Prosecutors’ Use of Religious Arguments in the Sentencing Phase of Capital Cases HARDIN, TRACEY A.: Rethinking Independence: The Lack of an Effective Remedy for Improper For-Cause Removals HOPPMANN, KARIN B.: Concern with Public Concern: Toward a Better Definition of the Pickering/Connick Threshold Test JEFFERSON, T. HUNTER: Constitutional Wrongs and Common Law Principles: The Case for the Recognition of State Constitutional Tort Actions against State Governments LOVE, TAMSEN DOUGLASS: Toward a Fair and Practical Definition of “Willfully” in the Medicare/ Medicaid Anti-Kickback Statute MAY, CHRISTOPHER: Smoke and Mirrors: Florida’s Tobacco-Related Medicaid Costs May Turn Out to Be a Mirage 1997] INDEX MUNSON, GREGORY MARK: A Straitjacket for Employment At- Will: Recognizing Breach of Implied Contract Actions for Wrongful Demotion ROBERSON, BENJAMIN W.: Abortion as Commerce: The Impact of United States v. Lopez on the Freedom of Access to Clinic Entrances Act of 1994 WEATHERSBEE, BRETT WARREN: No More Excuses: Refusing to Condone Mere Carelessness or Negligence under the “Excusable Neglect” Standard in Federal Rule of Civil Procedure 60(6)(1) NOTES-TITLE INDEX ABORTION AS COMMERCE: THE IMPACT OF UNITED STATES V. LOPEZ ON THE FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994: Benjamin W. Roberson... BARRING FOUL BLOWS: AN ARGUMENT FOR A PER SE REVERSIBLE-ERROR RULE FOR PROSECUTORS’ USE OF RELIGIOUS ARGUMENTS IN THE SENTENCING PHASE OF CAPITAL CASES: Brian C. Duffy CONCERN WITH PUBLIC CONCERN: TOWARD A BETTER DEFINITION OF THE PICKERING/ CONNICK THRESHOLD TEST: Karin B. Hoppmann CONSTITUTIONAL WRONGS AND COMMON LAW PRINCIPLES: THE CASE FOR THE RECOGNITION OF STATE CONSTITUTIONAL TORT ACTIONS AGAINST STATE GOVERNMENTS: 7. Hunter Jefferson IOLTAS UNMASKED: LEGAL AID PROGRAMS’ FUNDING RESULTS IN TAKING OF CLIENTS’ PROPERTY: Kevin H. Douglas MELTING THE PLASTIC THEORIES: ADVOCATING THE COMMON LAW OF FRAUD IN CREDIT CARD NON-DISCHARGEABILITY ACTIONS UNDER 11 U.S.C. § 523(a)(2)(A): CraigA .B ruens No MORE EXCUSES: REFUSING TO CONDONE MERE CARELESSNESS OR NEGLIGENCE UNDER THE “EXCUSABLE NEGLECT” STANDARD IN FEDERAL RULE OF CIVIL PROCEDURE 60(b)(1): Brett Warren Weathersbee RETHINKING INDEPENDENCE: THE LACK OF AN EFFECTIVE REMEDY FOR IMPROPER FOR-CAUSE REMOVALS: Tracey A. Hardin SECOND THOUGHTS ON SECOND PUNISHMENTS: REDEFINING THE MULTIPLE PUNISHMENTS PROHIBITION: Peter Michael Bryce SMOKE AND MIRRORS: FLORIDA’S TOBACCO-RELATED MEDICAID COSTS MAY TURN OUT TO BEA MIRAGE: Christopher May A STRAITJACKET FOR EMPLOYMENT AT-WILL: RECOGNIZING BREACH OF IMPLIED CONTRACT ACTIONS FOR WRONGFUL DEMOTION: Gregory Mark Munson TOWARD A FAIR AND PRACTICAL DEFINITION OF “WILLFULLY” IN THE MEDICARE/MEDICAID ANTI-KICKBACK STATUTE: Tamsen Douglass Love SPECIAL PROJECT CURRENT ISSUES IN MENTAL HEALTH CARE: John A. Flippen, Robert Caperton Hannon, Christopher Aaron Jones, and Tamsen Douglass Love 1997] INDEX INDEX DIGEST Page references followed by an asterisk (*) are to Leading Articles, Essays, Prefaces, Symposiums, and Book Reviews; those followed by a dagger (f) are to Notes; those accompanied by two daggers (ff) are to the Special Project. BANKRUPTCY CONSTITUTIONAL (Cont’d) Melting the Plastic Theories: Advocating Still Lost in the Political Thicket the Common Law of Fraud in Credit (or Why I Don’t Understand the Card Non-dischargeability Actions Concept of Vote Dilution) The Supreme Court, Visibility, and the under 11 U.S.C. § 523(a)(2)(A) 1257 + “Politics of Presence” United States v. Virginia’s New Gender Equal Protection Analysis with CIVIL PROCEDURE Ramifications for Pregnancy, No More Excuses: Refusing to Condone Parenting, and Title VII Mere Carelessness or Negligence under the “Excusable Neglect” Standard in Federal Rule of CORPORATE Civil Procedure 60(b)(1) Policing Corporate Crime: The Dilemma of Internal Compliance Programs CONSTITUTIONAL Abortion as Commerce: The Impact of United CRIMINAL States v. Lopez on the Freedom of Access Barring Foul Blows: An Argument for to Clinic Entrances Act of 1994 a Per Se Reversible-Error Rule for All the Supreme Court Really Needs Prosecutors’ Use of Religious to Know It Learned from the Arguments in the Sentencing Phase Warren Court 459 of Capital Cases 1335 f The Black Public Sphere and Mainstream Rethinking Independence: The Lack of an Majoritarian Politics 339 Effective Remedy for Improper Concern with Public Concern: Toward For-Cause Removals a Better Definition of the Second Thoughts on Second Punishments: Pickering/Connick Threshold Test... 993 Redefining the Multiple Punishments Constitutional Wrongs and Common Law Prohibition Principles: The Case for the Recognition of State Constitutional Tort Actions against State Governments Democracy, Kulturkampf, and the Apartheid EMPLOYMENT LAW of the Closet 419 A Straitjacket for Employment At-Will: Democracy, Majoritarianism, and Racial Recognizing Breach of Implied Equality: A Response to Professor Contract Actions for Wrongful Karlan Demotion The Democratic Judge The Dynamics of Democracy: Travel, Premature Predation, and the HEALTH CARE Components of Political Identity Current Issues in Mental Health Care... 677tt Formal Neutrality in the Warren and Smoke and Mirrors: Florida’s Tobacco- Rehnquist Courts: Illusions of Related Medicaid Costs May Turn Similarity Loss and Redemption: Voting Rights at the Toward a Fair and Practical Definition of Turn of a Century “Willfully” in the Medicare/Medicaid Neutral Principles: A Retrospective Anti-Kickback Statute On the Merits: A Response to Professor Sherry Romer v. Evans and Democracy’s INTELLECTUAL PROPERTY Domain g 361 Intellectual Property Rights in Data?...... The Role of the “Harm/Benefit” and “Average Reciprocity of Advantage” Rules in a Comprehensive Takings LEGAL EDUCATION Analysi 1449 Proofitatus Est Puddinatis State User Fees and the Dormant Cc ce Clause 795 1997] LEGAL PHILOSOPHY Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation From Premodern to Modern American Jurisprudence: The Onset of Positivism LEGISLATION Unfunded Mandates and Fiscal Federalism: A Critique IOLTAs Unmasked: Legal Aid Programs’ Funding Results in Taking of Clients’ Property PUBLIC CHOICE Public Choice and the Future of Public-Choice-Influenced Legal Scholarship SECURITIES Statutory Findings and Insider Trading The Hidden Costs of the Progressivity TORT Reconceptuliazing Strict Liability in Tort: