Volume 54, Issue 3

Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. Trading a confession for a search will encourage guilty pleas while reducing invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment.

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Patient Protection and Decision-Aid Quality: Regulatory and Tort Law Approaches

This Article considers a new development in medical practice—the use of medical decision-support tools—and positions it within one of the most enduring debates at the intersection of administrative law and tort law. The Article identifies key factors that policy-makers in medical, environmental, and other contexts use to decide between regulatory and tort approaches to public protection, and argues that ex ante regulation may be insufficient to guarantee the quality of decision- support tools in the absence of a complementary tort remedy. The Article concludes by identifying the steps that would need to be taken to establish a system of ex post tort liability for creators of faulty decision aids and explaining the challenges associated with such a move.

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How Law Frames Moral Intuitions: The Expressive Effect of Specific Performance

Some contract theorists favor specific performance as the appropriate remedy for contract breach. According to ethical theorists, specific performance reinforces the moral obligation that promises should be kept. Some economists argue that specific performance promotes efficient contract bargaining. This Article challenges this conventional wisdom, showing that moral evaluations and the willingness to bargain are themselves strongly affected by whether specific performance is available as a default remedy or not.

Our insight is based on a novel, original empirical study. This Article presents the results of an experiment that measures and compares decisions and motivations involved with the performance, breach, and enforcement of valid legal contracts that participants signed with each other. We provided one group of participants with a default remedy of specific performance while another group could prevent the breach of contract without relying on a legal default. We observed that, when specific performance was the default remedy, participants decided to sacrifice a substantial part of their earnings in the experiment in order to obstruct an efficient breach. Our results indicate that the specific performance default triggered conflicting moral intuitions about contract breach among contracting parties. Specific performance made the ethical norm to adhere to the contract more salient to promisees, while promisors focused on the efficiency of the breach.

Based on these findings, our study challenges fixed, deontological viewpoints on the immorality of contract breach. In providing a dynamic and empirically grounded understanding of the ethics of contract breach, our study highlights the influence of legal frames on moral intuitions. Our findings also question the alleged efficiency benefits of specific performance. By inducing deontological rather than utilitarian intuitions about contract breach, a specific performance default likely has the effect of making negotiations involving efficient breaches more difficult.

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Seeing is Deceiving: The Tacit Deregulation of Deceptive Advertising

This Article reveals the central paradox in modern advertising law—that despite advertisers’ nearly universal shift from linguistic claims to comparatively powerful visual imagery, the FTC and courts continue to scrutinize the more trivial linguistic elements of ads while leaving visual imagery mainly unregulated. As a result of this misplaced effort, the more pervasive and persuasive the form in which an advertiser makes its deceptive claims, the less subject to regulation the claims will be. The Article analyzes the causes of this paradox and offers preliminary suggestions for how the FTC and courts could effectively adapt the general framework they apply in deceptive advertising cases to the unique characteristics of visual imagery. It concludes by explaining that a more rigorous assessment of visual imagery would fulfill Congress’s intent to protect consumers and business firms from deceptive advertising and comport with Supreme Court commercial speech jurisprudence, while avoiding the market inefficiencies and loss of social capital associated with widespread deception.

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Have Your Cake and Eat It Too! Appropriately Harnessing the Advantages of Nonlawyer Ownership

In the United States, Model Rule 5.4 prohibits law firms from sharing fees with nonlawyers, concomitantly denying firms the benefits of outside investment enjoyed by other types of businesses. This rule serves several of the legal profession’s core values, primarily ensuring that lawyers are able to exercise their independent professional judgment.

But what if firms could have their cake and eat it too? What if there was a way to harness the benefits of nonlawyer ownership without undermining the values that Model Rule 5.4 protects? This Note evaluates a discussion draft released by the ABA Commission on Ethics 20/20 and uses it as a stepping stone toward constructing a more liberal model for nonlawyer ownership. The model proposed in this Note effectively addresses the ethical concerns regarding nonlawyer ownership while maximizing its benefits.

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You’re Not From Around Here, Are You? Fighting Deceptive Marketing in the Twenty-First Century

Deceptive marketing has hurt consumers and business owners since the birth of promotional advertising. As the Internet increasingly inspires and dictates our consumption choices, even sophisticated business acumen and technological savvy are not enough to withstand the harmful consequences. While lawmakers and courts have fashioned remedies applicable to some misleading practices, sly marketers with deep pockets frequently find new ways to trick unsuspecting shoppers and seize market share. This Note therefore provides a novel interpretation of prior scholarship to recommend a solution to a particularly misleading marketing practice—deceptive search engine optimization—in order to bolster currently available, yet independently inadequate, alternatives. Although some of the problems associated with deceptive search engine optimization have caught the media’s eye as of late, a much-needed solution is heretofore unexplored in law review literature.

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Before Crying Foul: An Incomplete Alignment of Arizona’s Community Property Doctrine and the Uniformed Services Former Spouses’ Protection Act

Who would ever deny that both military veterans and their spouses deserve the respect and admiration of this Nation for the sacrifices they make? Yet when these couples divorce, the courts must determine whether and how to divide retirement and disability benefits between these two groups of individuals. Arizona’s community property doctrine, which favors the division of community property between spouses, directly conflicts with the federal government’s historic interpretation of military retirement and disability benefits. To resolve the conflict, the Arizona legislature recently enacted sections 25-318.01 and 25-530 of the Arizona Revised Statutes. Though these statutes represent a drastic change within Arizona’s family courts, the statutes’ prohibition against dividing military disability benefits is not as comprehensive as federal law suggests it should be. This Note explores the incomplete alignment of state and federal law, what implications it may have for practitioners, and the policy considerations that laymen, attorneys, and legislators should keep in mind before crying foul at the enactment of these statutes or their incomplete alignment of federal and state law.

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