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The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 dramatically altered the system of consumer bankruptcy in the United States. In the wake of that landmark legislation, this article seeks to provide a historical context and perspective. The article identifies and highlights the “top twenty” consumer bankruptcy issues in the develop-ment of the Anglo-American bankruptcy tradition. These issues are grouped into the following broad categories: (1) who is eligible for bankruptcy relief; (2) what assets does the debtor get to keep; (3) what future income is shielded; and (4) who decides and how. Finally, the article looks briefly at the moral aspect of consumer bankruptcy, viewed through an historical lens.

The Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 dramatically changed several aspects of individual consumer bankruptcy law. In many instances these changes are vague, confusing, and incomplete. In this article, United States Bankruptcy Judge Eugene Wedoff outlines what he considers to be the most signifi-cant changes to U.S. consumer bankruptcy laws brought on by BAPCPA. Judge Wedoff examines the changes and additions to the code for possi-ble internal inconsistencies and illuminates points of tension among the provisions. Some of the changes affect chapters 7, 11, and 13 equally. Other changes impact only discrete types of consumer bankruptcy.

While avoiding any normative analysis of the overarching scheme, Judge Wedoff points out that some problematic language in BAPCPA may lead to confusion among consumers, judges, and lawyers. In discussing what the most rational reading of several sections might be, Judge Wedoff gives practitioners and academics alike a view of the new provisions from the bench.

Reorganization under the Bankruptcy Code serves the public inter-est by providing worthy debtors a mechanism to gain relief from crushing debt while maintaining some measure of fidelity to creditors. The Bank-ruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 initiated fundamental changes to this mechanism in an effort to en-sure the continued worthiness of bankruptcy applicants.

BAPCPA changes a number of provisions in the Code with respect to in-dividual debtors. This article suggests that BAPCPA’s provisions have created and will continue to create unexpected anomalies in individual chapter 11 cases, due in large part to the manner in which BAPCPA provisions affecting such individuals are scattered throughout the Code. The author contends that BAPCPA’s reworking of chapter 11 created a hidden category of individual reorganization. As Congress was building this mystery, it unnecessarily masked the import of substantive changes to chapter 11. Attempting to shed light on the matter, the author explores the roots of the BAPCPA provisions and summarizes the five most significant adjustments relevant to individual debtors in chapter 11, contrasting chapter 11’s operation with that of chapter 13.

Chapter 11 for individuals post-BAPCPA tends to work mischief at all stages in the reorganization process. New concerns arise with regard to the debtor’s ability to pay expenses necessary to achieve confirmation of the reorganization plan. Uncertainties exist regarding the allocation of property into the estate, and as to who may have standing in postconfir-mation plan modifications. As the article suggests, Congress could have avoided, or even discovered, many of these difficulties if BAPCPA’s pro-visions had been grouped together as a separate subchapter to chapter 11.

Congress enacted the 2005 Bankruptcy Act in a climate of unfair accusations against bankruptcy judges and debtors’ lawyers. In addi-tion, because the Act is badly designed and drafted, bench and bar have had to struggle to attempt to achieve the legislation’s announced goals—abuse prevention and consumer protection. This article reviews the initial reactions of the profession to this extraordinary set of challenges.

In the first part of the article, Professor Braucher explores the early judi-cial responses to the 2005 Act. She categorizes decisions of judges in as-cending order of effectiveness: vanquished venting of frustrations with the Act, without offering solutions to achieve consumer protection and abuse prevention; nihilistic nitpicking at the Act’s imperfections, thwarting its few clear moves toward more principled debt relief; torturing the text in ways that are unlikely to be followed; and subtle subversion of the de-signs of the credit industry, designs that fortunately were not actually ex-pressed in the legislation.

The second part then examines how debtors’ lawyers have dealt with (or challenged) the many new burdens under the 2005 Act, including the re-quirements apparently imposed upon them as “debt relief agencies” and the need to generate a great deal of new paperwork and handle many new issues at once, while keeping fees affordable. The author ultimately concludes that there is good news despite the waste and chaos inflicted by the legislation. Professional organizations as well as a sense of professionalism have helped many judges and practitioners deal with a poorly crafted and conceived piece of legislation. She urges professionals to stay focused on the stated purposes of the legislation, abuse prevention and consumer protection, as the best means to keep the consumer bankruptcy system running effectively on behalf of the hopelessly overindebted.

In BAPCPA, the automobile lenders won a dramatic curtailment of lien stripping of auto loans in chapter 13 proceedings. After reviewing this and other BAPCPA provisions affecting auto lenders, the author con-cludes that automobile lenders probably will benefit from BAPCPA more than most other creditor groups, including the credit card interests who played such a substantial role in securing enactment of the legislation.

The author then provides a political and legislative history of BAPCPA provisions affecting automobile lenders, drawing on numerous sources, including interviews with participants in the process. When new bank-ruptcy legislation was first considered by the National Bankruptcy Re-view Commission, automobile lender interests did not seek restriction of lien stripping in chapter 13, nor was such a proposal contained in the first bills introduced in Congress. The idea was added to the legislation in May 1998, by adoption of an amendment offered by Senator Spencer Abraham of Michigan during Senate Judiciary Subcommittee proceed-ings. The author speculated that other creditor groups were surprised by this amendment, which was not in their interest, but decided not to op-pose it in order to maintain the apparent unity of a broad creditor coali-tion supporting the legislation. Later in the legislative process the limitations of lien stripping that had been proposed by Senator Abraham were scaled back modestly, but at the behest of debtor interests and without the active support of creditor interests whose interests are compromised by the limitations of lien stripping.

The article concludes with speculation about why the various interests lobbying for the legislation acted as they did, whether the content of BAPCPA would be different if these interests had acted differently, and what the future might bear. Finally the author offers a few comments about the lessons of this experience for how bankruptcy policy should be made.

Unlike the United States, Canada has never adopted a “fresh start” policy in the American sense with respect to individual bankrupts. Ra-ther, from 1919 onwards, Canadian bankrupts have been obliged to sur-render, for distribution to their creditors, surplus income and nonexempt property acquired by them prior to the discharge order, as well as after discharge from bankruptcy if required as part of the discharge order. Important changes were made to these provisions in 1992 and 1997.

The author compares the current Canadian means testing requirements with those adopted in BAPCPA and notes that the Canadian scheme serves a very different purpose from the BAPCPA requirements. So far as the actual means tests are concerned, the author expresses the view that the Canadian test is substantially less generous than the BAPCPA test and he concludes that the United States has little to learn from Canada unless the United States is minded to adopt even more basic changes in its fresh start philosophy than those appearing in BAPCPA.

This article discusses comparative consumer bankruptcy in the con-text of the international spread of consumer credit capitalism and its ac-companying social cost, overindebtedness. The article outlines the con-tours of regulation of credit markets and overindebtedness within Europe, the influence of the U.S. idea of the “fresh start” on recent changes in European debt-adjustment laws and continuing contrasts with the U.S. approach to bankruptcy. As consumer debt increases in Europe and elsewhere, these differences between continental European and North American approaches to bankruptcy might be explained by the path-dependence of legal institutions, cultural differences, or the political in-fluence of interest groups. The article is skeptical about cultural expla-nations of difference and suggests the value of an analysis that is sensi-tive to political economy and history. It also argues that future comparative research should focus on overindebtedness rather than bankruptcy.

Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, United States bankruptcy law provided a number of different mechanisms designed to both facilitate credit markets and provide some measure of consumption insurance. The interplay between chapter 7 and chapter 13 discharge procedures in particular influenced debtor behavior such that debtors sought to maximize financial gain from bankruptcy by transferring wealth from nonexempt forms to exempt forms.

BAPCPA dramatically altered the procedures affecting debtor behavior. In an effort to stop opportunistic behavior, BAPCPA eliminated a number of wealth manipulation strategies. However, BAPCPA provided new strategies and incentives to transfer wealth to new exempt forms, manipulate the means test, and ultimately succeed in avoiding debt re-payment.

This article examines incentives to act opportunistically before and after BAPCPA. As demonstrated in the article, BAPCPA creates a ten-fold incentive to curtail work six months before filing to reduce median income for purposes of manipulating the means test. However, because of increased costs to file, BAPCPA significantly deters nonopportunistic debtors. After examining BAPCPA’s deleterious effect on bankruptcy law as a source of consumption insurance, the article suggests an alternate approach. Under the approach, a single filing procedure is created where debtors must repay debts from both income and wealth in an effort to track obligation to repay with ability to repay. The article suggests this approach creates greater economic efficiency, significantly deters opportunistic behavior, and maintains bankruptcy as a source of consumption insurance. Ultimately, the article suggests that BAPCPA benefits credit markets, damages consumption insurance goals, and may not have a significant effect on opportunistic behavior.

Financial innovations, spurred by the growth of information tech-nology, have transformed the consumer lending industry. Today lenders have unfettered access to a wider spectrum of borrowers and are better able to assess the likelihood that these borrowers will repay the debt they incur. Consequently, the level of consumer household debt has risen dramatically in the past three decades, and will continue to rise, which will lead naturally to an increase in bankruptcy filings. Although our initial intuition tells us that bankruptcies are bad, the author advances the idea that this development is inevitable and that instead of focusing on amending bankruptcy laws, reformers should ask instead whether regulations can help consumers make better borrowing decisions.

The personal bankruptcy system is part of a larger system of house-hold risk management. Much of the discussion about personal bankrupt-cy has focused on bankruptcy’s insurance role with respect to unsecured obligations like credit cards and medical bills. The passage of omnibus bankruptcy legislation coupled with dramatic changes in the home mort-gage market indicate, however, that it is time to devote more study to the role of the bankruptcy system in managing home mortgage related risks. In this article, Professor Melissa Jacoby identifies and begins to evaluate chapter 13 as a mortgagor protection law. She explores questions we should ask to determine whether bankruptcy is prolonging unsustainable homeownership. Professor Jacoby then considers the impact of two re-cent revisions to the Bankruptcy Code relating to credit counseling and repeat filers. She concludes that these kinds of revisions may promote sorting based on homeownership sustainability.

Congress designed the 2005 amendments to the federal Bankruptcy Code to decrease consumer bankruptcy filings, but does history suggest that is a reasonable expectation for the new law? Using government da-ta, this article examines the relationship between household debt and changes in the legal regime on bankruptcy filing rates. The author finds that the components of household debt have different relationships with bankruptcy filing rates over different time frames. Over both the short- and long-term, increased mortgage debt is associated with increased bankruptcy filing rates. Consumer debt, however, has a negative short-term relationship with bankruptcy filing rates but a positive long-term re-lationship. A run up in consumer credit seems to allow consumers to de-lay but not avoid bankruptcy. The relationships were statistically mean-ingful and robust to different specifications of statistical models.

Previous amendments to the federal bankruptcy law in 1938 and 1979 did not have any significant effect on bankruptcy filing rates. Rather, after each of these enactments, bankruptcy filings continued to move with overall macroeconomic trends unabated by changes in the legal regime. The 1984 amendments, however, were associated with an increase in fil-ing rates, a rather surprising result given that the 1984 amendments—like the 2005 amendments—were meant to crack down on perceived overly generous bankruptcy laws. Others have noted that the 1984 amendments were followed by an expansion of consumer credit, which the other find-ings suggest are associated with a long-term increase in the filing rate. Taken together, these findings suggest the 2005 amendments may similar-ly lead to an expansion of consumer credit and a long-term increase in the bankruptcy filing rate.

Those that backed the 2005 bankruptcy reform law argued that it would protect creditors from consumer abuse and lack of financial re-sponsibility. The substantial increase in the number of bankruptcies over the last decade combined with the perception of systemwide abuse appar-ently convinced legislators from both political parties that the backers had a point. Thus, Congress enacted amendments to the Bankruptcy Code that—if effective—would fundamentally change the core policies underlying the consumer bankruptcy system in this country. The rhetoric surrounding the reform debates pressed the idea that if borrowers had to repay more of their debts, creditors would achieve savings that—through pressures of competition—would be passed on to consumers in the form of lower interest rates and improved access to credit. This essay ad-dresses some of the problems with this justification and considers what else creditors (and particularly credit card issuers) could have expected to achieve with the new law.

Professor Mann argues that the new law will benefit issuers substantially, though not for reasons commonly discussed in the negotiation and draft-ing of the statute. Means testing alone will not return enough in in-creased bankruptcy payouts to justify the lobbying expenditures and cam-paign contributions that led to the statute’s enactment. Rather, the most important effect will be to facilitate the credit card lending business mod-el, by slowing the time of inevitable filings by the deeply distressed and allowing issuers to earn greater revenues from those individuals. In a nutshell, the new law does little for creditors once they reach the court-house. Its foremost effect will be to enable issuers to profit from debt servicing revenues paid by distressed borrowers who are not yet in bank-ruptcy. For issuers that depend on debt revenues, the benefits of the law could be dramatic.

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the in-creasing rate at which individuals have been filing for bankruptcy. Tak-ing into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. In-stead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of “bad credit”—or credit extended to individuals even though there is a reasonable likelihood that the individ-ual will be forced to default. While the author recognizes the need to hold individuals accountable for the debt they incur, he contends that bankruptcy reform should be targeted towards those creditors who are partly, if not chiefly, responsible for causing a debtor to default, given creditors’ competitive advantage in determining the repayment capacity of individuals. To this end, the author explores the idea of imposing pri-vate liability on consumer lenders who bear primary responsibility for a debtor’s financial default through a contract defense to collection, or possibly an affirmative cause of action in tort. Possible consequences of this proposal, such as a reduction in lending activity, are considered and addressed.

In United States v. Leon, the U.S. Supreme Court created the good faith exception, which provides that the exclusionary rule does not bar ev-idence seized in reasonable reliance on a warrant issued by a detached and neutral magistrate in criminal trials. This note examines whether the good faith exception applies to evidence seized pursuant to a warrant that is itself the fruit of an illegal search. After examining the ambiguities be-tween the narrow holding and broad rationale of Leon and tracing the origins of the split of authority regarding illegal predicate searches, the author analyzes three different ways that courts have resolved the issue: extending the good faith exception, refusing to extend the exception, and making application of the exception contingent on the disclosure of facts concerning the predicate search to the magistrate. The author explains why all three of these approaches are unsatisfactory before proposing a novel, three-step analysis. The author’s proposed approach attempts to remain consistent with existing doctrine and to restore both the defendant and the government to the status quo ante.

The ramifications of September 11th reach far beyond national se-curity. Bilal Zaheer takes a closer look at a specific area, religion in the workplace, that figures to grow even more prominent in the post-September 11th world. In particular, Islam will soon surpass Judaism as the largest minority faith in the United States. Zaheer emphasizes the unique problems that Islam, with its practice-intensive nature, presents for both employers and employees in trying to provide equitable accom-modations to religious minorities in the workplace. Although Congress passed section 701(j) of Title VII to eliminate the tension between religion and work, and force employers to accommodate certain religious practices, modern court interpretations have rendered section 701(j) an empty protection.

As a result, Zaheer offers a new framework for analyzing section 701(j). Specifically, Zaheer suggests that employers should be required to ac-commodate all practices deemed “central” to the employee’s faith, unless accommodation of those practices would result in a significant hardship to the employer. In contrast, noncentral religious practices must be accommodated only if the employer can do so without incurring more than a de minimis cost. Although Islam acts as the test case for exposing and resolving interpretation issues under section 701(j), Zaheer’s framework provides robust protection for all religious minorities in the workplace.

There is a longstanding debate as to whether changes in sharehold-er-level taxes have an effect on firm dividend policy. The traditional view is that tax changes influence dividends, while the new view is that there generally is no such effect. In support of the traditional view, recent observers point to the rise in dividends following the reduction in the tax rate on dividends in 2003. In fact, the resurgence in dividends has been so strong that President Bush has made it one of his top legislative priorities to permanently extend the tax cut, which is currently set to expire at the end of 2010. The popular assumption is that the rise in dividends—and any associated economic and corporate governance benefits—will continue only if the lower rate is made permanent. This article challenges that assumption. Using finance theory and empirical evidence from the United States and other countries, this article shows that the relationship between dividends and taxes over the long run is more complex than dividend tax cut proponents suggest. Because the 2003 tax cut was only a temporary cut, making it permanent may actually have an effect that is opposite of what is intended. The implication is not that a temporary tax cut is preferable to a permanent one, but rather that the attempt to influence corporate behavior through tax laws should be resisted as either futile or potentially counter-productive.

Recent scholarship has begun to assess the role of intellectual prop-erty rights in the theory of the Coasean firm. Some of this scholarship has looked at the effects of intellectual property on decisions to “make or buy” inputs to production. Other scholarship has looked at the effects of intellectual property on allocation of resources between employees and the firm. In this article, we integrate these two lines of scholarship, positing a “Goldilocks hypothesis” for the proper disposition of intellectual property rights. We argue that to properly allocate resources within the firm, property rights must be calibrated so as to avoid on the one hand misappropriation of firm resources when rights are inadequate, and on the other hand dissipation of employee incentives when rights are excessive. Similarly, we argue that to properly manage transaction costs at the edge of firms, property rights must be calibrated so as to avoid on the one hand inefficient integration into the firm of specialized functions when property rights are inadequate, and on the other hand a fragmented anticommons of specialty firms when property rights are excessive. Thus, we conclude that in order to contribute to the efficient structure of firms, intellectual property rights can be neither too weak nor too strong, but must be constituted “just right.”

In this article, Professor Parrish explores the legitimacy of the U.S. Supreme Court’s use of foreign law in constitutional adjudication. In re-cent years, the U.S. Supreme Court has used foreign law as persuasive authority in a number of highly contentious cases. The backlash has been spirited, with calls for foreign law to be categorically barred from constitutional adjudication, and even for justices to be impeached if they cite to foreign sources. The condemnation of comparative constitutionalism recently reached its high watermark, as a barrage of scholarship decried the practice as illegitimate and a threat to our national sovereignty. The result has been a change to the debate’s tenor. Instead of exploring how to use foreign materials in a sophisticated and refined manner, the debate has been reduced to an overly simplistic all-or-nothing proposition.

This article addresses the recent condemnation of the U.S. Supreme Court’s use of foreign law as persuasive authority. After explaining how the debate has unfolded, the article critiques the recent arguments that opponents of the use of foreign law make. The article reveals how those arguments are misplaced, at times extreme, and inconsistent with a long history of American jurisprudence. In particular, the article explains how comparative constitutionalism is a hallmark of our state court sys-tem. The article then explores how the use of foreign law is not only sen-sible, but compatible with American constitutionalism and the proper role of the judiciary. Professor Parrish concludes that the judiciary’s use of foreign law as persuasive authority is largely commendable, not illegitimate. The recent attacks against the use of foreign law are spurred on by rhetoric, not substance: a storm in a teacup.

In 2004, President Bush announced his plan to ensure that most Americans would have electronic health records within ten years. Alt-hough substantial progress has been made toward achieving that goal, this progress has primarily reflected institutional interests and priorities by focusing on system architecture and technical standards. This article argues that in order for a nationwide transition to electronic medical records to be successful, however, the system must receive acceptance from patients and physicians. Thus, it must address and protect issues at the forefront of their concerns: namely, privacy and confidentiality. In-stead of merely adopting the minimal protections afforded by HIPAA, the electronic health records system must embrace an autonomy-based, de-fault position of full patient control over personal information, with very limited exceptions. Consequently, hard choices must be made as to the architectural and patient consent models that may involve subjugating some interoperability and comprehensiveness ambitions to principled protections of patient autonomy.

In the seminal case of Franks v. Delaware, the Supreme Court ex-pressly permitted trial courts to grant evidentiary “Franks hearings” to determine the veracity of warrant affidavits in certain circumstances. The Franks decision may represent a significant step toward the curtail-ment of unconstitutional police misconduct, but its ultimate effect remains to be seen. Although Franks appears well settled, much debate remains over the appeals process for the Franks hearings themselves.

This note analyzes the appropriate standard of appellate review that should be applied in cases where the trial court denies a defendant the opportunity to receive a Franks hearing. While the circuits are split over the application of either the traditional de novo or abuse of discretion re-view standards, Holesinger adopts a compromise position—Ornelas’s standard of de novo review with due deference. Holesinger reaches this conclusion after analyzing various influential factors including the tradi-tional division of roles between trial and appellate courts, the effects on the warrant preference system, and the good faith warrant mistake doc-trine. Adopting this unique application of the Ornelas standard, Holesinger concludes that the key benefits of each of the traditional re-view standards will follow.

The Fair Housing Amendments Act (FHAA) promotes equal use and enjoyment of housing by prohibiting discrimination against, and requiring reasonable accommodations for, tenants with disabilities. However, it is unclear what exactly is required of the landlord and tenant to fulfill the FHAA’s reasonable accommodation requirement. A minority of courts require the landlord and tenant to engage in an “interactive process,” whereby the landlord and tenant work together to understand the tenant’s limitations and discuss potential accommodations that would create an acceptable housing situation. However, courts remain split on the issue of whether such an interactive process is required under the FHAA. The author highlights ways in which the interactive process upholds the antidiscriminatory goals of the FHAA and serves the best interests of tenants, landlords, and society as a whole. In light of the relative costs and benefits of tenant-landlord communication, the author proposes legislative and agency action to clearly reflect that the interactive process is required under the FHAA.

There is little doubt that over the past thirty years, the most im-portant doctrinal development in the jurisprudence of constitutional rights has been the formulation, and proliferation, of “tiers of scrutiny,” which courts employ to reconcile individual liberties with societal needs. The First Amendment “intermediate scrutiny” tier was born as a product of the merger of several distinct and narrow branches of the Supreme Court’s jurisprudence and, over the years, has attained central im-portance in the overall structure of free speech law. Indeed, so important and ubiquitous has intermediate scrutiny become that Justice Scalia has described it as a “default standard,” and it has been the standard of re-view in countless significant Supreme Court and courts of appeals cases over the past quarter century. Despite this importance, however, scholar-ly analysis of First Amendment intermediate scrutiny has been curiously muted.

This article seeks to fill this major gap in modern First Amendment scholarship by offering a comprehensive assessment of the intermediate scrutiny test. After providing a historical description of the development of intermediate scrutiny since the mid-1980s, this article argues that de-spite uncertainties that still exist in the Supreme Court, it is clear that a distinct body of intermediate scrutiny free speech jurisprudence has emerged at the appellate level. Then, this article turns to an examination of how the intermediate scrutiny test has in fact been applied in the courts of appeals since its emergence. Because an examination of the case law reveals that the intermediate scrutiny test does not function very well in practice, this article concludes that the proper doctrinal solution is disaggregation. Disaggregation, the dismantling of the intermediate scrutiny test into its constituent parts, will create a more detailed jurisprudence regarding how appellate courts should balance speech rights and societal interests in different areas of free speech law.

Governments increasingly rely on private entities to institute educa-tional reforms. This article examines the effects of the most significant of these market-based reforms: charter schools. As of the 2004–2005 school year, the United States boasted over three thousand charter schools, with state governments facing continued pressure to expand that number. Some critics, however, fear that charter schools pose a threat to the traditional public school system. Their central concern, generally re-ferred to as “cream-skimming,” is that the educational choice system created by charter schools privileges those students and parents whose race, class, or educational background afford them a better position to navigate the market for schools. This article will contend that the threat of cream-skimming currently appears unsubstantiated. Additionally, it will posit that charter schools may actually become allies with district schools, potentially aiding in efforts to increase educational funding. However, because the reforms are so new and the educational landscape is changing in so many ways, additional research is necessary to fully as-certain charter schools’ impact on the traditional public school system.

The refusal to enforce gratuitous promises absent consideration is one of the foundations of contract law. The rationales with which courts and scholars supported this traditionalist view—the evidentiary, caution-ary, and channeling functions of consideration—have been framed and analyzed in terms of law and economics. However, even when framed in economic terms, these traditionalist arguments are less than persuasive because they assume that certain factors that limit rational human deci-sion making apply only to gratuitous promises and not bargained-for commercial promises.

This article attempts to analyze the refusal to enforce gratuitous promises from a behavioral law and economics perspective. Behavioral law and economics tends to show that the same limits on rational human decision making that apply to gratuitous promises also apply to bargained-for commercial exchanges. The article argues that although behavioral law and economics analysis of the traditional arguments does not support dif-ferential treatment of gratuitous and bargained-for promises, it fails to provide a rationale for overturning the common law’s refusal to enforce gratuitous promises.

Although most are familiar with South Dakota’s recently repealed abortion ban, few are aware that South Dakota previously enacted an informed consent statute that prohibits physicians from performing abortions without first obtaining the voluntary and informed written consent of the pregnant woman seeking an abortion. The law is most unusual, because it provides that an abortion may be performed only after a physician informs a patient that she is terminating the life of “a whole, separate, unique, living human being,” and only after a physician informs a patient that abortion may cause a significant risk of psychological trauma, a risk that accepted medical knowledge does not believe exists.

This lecture analyzes the First Amendment principles that should apply to compelled physician speech of this kind. It argues that although the state may freely regulate physician speech as part of its regulation of the practice of medicine, First Amendment questions are raised by (at least) two forms of such regulation. The first is when the state requires physicians to engage in ideological speech. The second is when the state either requires physicians to communicate information that the medical profession regards as false, or prohibits physicians from communicating information that the medical profession regards as true. The lecture analyzes the First Amendment stakes in determining the constitutionality of such regulations, with particular attention to the necessity of pro-tecting structures of professional practice that define expert knowledge. The lecture argues that there is a First Amendment interest in protecting the integrity of physician-patient communications as a channel for the communication of accurate medical information.

Asserting that abortions are coerced and subject women to physical and emotional harms, South Dakota recently passed legislation prohibit-ing abortion except where it would prevent the death of a pregnant wom-an. The use of woman-protective antiabortion argument to defend the South Dakota ban reflects a shift from fetal-focused to gender-based jus-tifications for abortion regulation. Although the South Dakota ban was defeated by referendum, woman-protective antiabortion argument is spreading.

Proponents assumed the South Dakota ban would be constitutional if the Supreme Court overturned Roe v. Wade. This lecture argues that even if Roe is reversed, constitutional principles of equal protection constrain government regulation of abortion. The lecture demonstrates that wom-an-protective antiabortion argument of the kind used to justify the South Dakota ban rests on stereotypes about women’s capacity and family roles. The ban was based on the understanding that the state should reg-ulate women’s decisions about abortion because the state knows better than women do what they really want and need in matters of mother-hood. This lecture argues that the equal protection cases that prohibit state action enforcing sex stereotypes prohibit laws enforcing motherhood for gender-paternalist reasons of this kind.

Linda McClain’s book, The Place of Families: Fostering Capacity, Equality, and Responsibility, offers a thoughtful approach to government policy in family matters, grounded on what McClain calls “toleration as respect,” in which the government has a role in improving individuals and social institutions, while valuing personal and collective self-government and making a range of choices available. McClain’s ap-proach combines elements of liberalism, feminism, and civic republican-ism.

In the context of considering McClain’s proposals regarding marital equality, same-sex marriage, abortion, and sex education, this review es-say considers the problem of persuasion and social reform. In a country where many voters and officials do not share the values and proposals McClain endorses, how would one go about effecting the reforms she wants? This review essay, using examples from sex education and same-sex marriage, considers the possibilities, and limits, associated with find-ing points of agreement, or seeking the common ground of consequential-ism.

To increase the availability, safety, and effectiveness of medical products and, thus, promote public health, medical product manufactur-ers must invest in the research and development of medical products. Unfortunately, the threat of tort liability discourages medical product manufacturers from doing so. This note attempts to resolve this dilemma. The author begins by briefly providing some background on the relevant medical and pharmaceutical approval processes. After examining the li-ability protections currently available—preemption of state tort claims, the regulatory compliance defense, and damage caps—the author con-cludes that these protections are, on the whole, beneficial. However, the author also acknowledges a critical shortcoming associated with the im-plementation of these tort liability protections—reduced manufacturer in-centive to perform adequate post-approval surveillance and testing. To address this shortcoming, the author proposes federal legislation combin-ing preemption, the regulatory compliance defense, and a nontraditional variation of damage cap to encourage investment in research and devel-opment while simultaneously maintaining manufacturers’ incentives to perform adequate post-approval surveillance and testing.

Under the doctrine of complete preemption, the preemptive power of a statute may be so “extraordinary” as to warrant the removal of state law claims to federal court on the basis of federal question jurisdiction. The Supreme Court has identified three statutes that have complete preemptive force, but has not created a clear test to establish whether a statute has complete preemptive force. This note addresses the question of whether the Railway Labor Act (RLA) operates with complete preemp-tive force. Lower federal courts have grappled with this issue and are di-vided as to whether the RLA, which establishes a comprehensive dispute resolution scheme for the rail and air carrier industries, possesses this extraordinary power. Though it has not delineated a clear test, the Su-preme Court has identified two factors that are essential—preemption and a federal cause of action—and several factors that are influential to a finding of complete preemption. The author identifies these factors, analyzes their application to the statutes that have been found to have complete preemptive force, and then discusses their application to the RLA in light of the circuit split. The author concludes that the RLA does not operate with complete preemptive force because the essential findings of preemption and a federal cause of action are only questionably satis-fied, and other influential factors suggest that RLA disputes were not in-tended to be heard in federal court.

This article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first re-vealing a variety of laws that together form a string of “family ties bene-fits” pervading the criminal justice system. Notwithstanding our recogni-tion of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a “Spartan” presumption against these family ties benefits within a criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome. When the presumption is overcome, we urge distributing the benefit on terms that are neutral to family status, and instead focus on functions served by established rela-tionships of care-giving responsibility.

Masculinities theory explains that masculinity is constructed in relation to a dominant image of gender difference, ultimately defining itself simply as what “femininity” is not. In the workplace, masculinities comprise both a structure that reinforces the superiority of men over women, and a series of practices associated with masculine behavior (performed by men and women) that maintain men’s superior position over women at work, yet specific masculinities differ according to the type of workplace. This article applies masculinities theory to analyze whether Title VII should protect women employees in highly sexualized workplaces from sex- or gender-based hostile work environments, created by customers and tolerated by the employer. To this end, the author employs a case study of the Hard Rock Hotel and Casino in Las Vegas, Nevada. Through its advertisements and policies, the Hard Rock creates a highly sexualized workplace for its female blackjack dealers, producing an atmosphere imbued with aggressive masculinities that create a stressful working environment for women dealers. The Hard Rock promotes and ratifies this behavior by constructing this environment, yet instituting few safeguards to protect its women employees.

The Hard Rock case study raises serious questions concerning the application of Title VII to protect women working in highly sexualized workplaces from hostile work environments. Part II presents the Hard Rock case study, and uses advertisements and dealers’ personal experiences to describe the Hard Rock’s sexualized environment. Part III then analyzes whether under Title VII, the law should hold the Hard Rock, and any other casino with a similar sexualized atmosphere, re-sponsible for customer behavior that harms its women employees. The author reaches several conclusions. First, courts should consider the context of the workplace and the job the woman performs in determining whether her employer has violated Title VII. Second, the Bona Fide Occupational Qualification ( BFOQ) defense should not expand to defend an employer’s failure to protect women employees from harassing behavior in a highly sexualized workplace. Finally, although employees should bear some responsibility to complain about harassment, the employer, who creates the sexualized environment and profits from it, rather than the individual employee, has the greater opportunity to control and prevent harassing behavior, and therefore should take extra precautions to assure employees are not suffering from harassment by customers. Title VII guarantees women equal job opportunities and equal treatment, even in highly sexualized workplaces. No woman should have to choose between a job that pays excellent tips and a harassment-free work environment.

This note explores whether a personality test constitutes a medical examination under the Americans with Disabilities Act of 1990 (ADA). Many modern-day employers use personality tests as a recruiting tool to save time and money in the hiring process. Unfortunately, some personality tests jeopardize the rights of individuals under the ADA. Specifically, certain tests threaten to reveal disabilities that should otherwise remain confidential. The judicial response to the question of whether personality tests constitute a prohibited medical examination under the ADA has been mixed. Some courts employ an intent-based approach that focuses more on the employer’s intended use of the examination. More recently, in Karraker v. Rent-A-Center, Inc., the Seventh Circuit developed an effect-based approach that takes seriously the threat to the rights of the disabled.

After conducting a thorough analysis of the ADA’s language, the Equal Employment Opportunity Commission’s Enforcement Guidance, the purpose of the ADA, and the relevant case law, the author concludes that both the intent-based and effect-based approaches currently employed reach improper results. The intent-based approach undermines the disabled individual’s interest in job opportunity and equality while the effects-based approach undervalues the employer’s interest in making efficient, accurate employment decisions. Thus, the author ultimately proposes the Medical Field Test, which appropriately balances the interests of employers and disabled applicants/employees and remains true to the letter and spirit of the ADA.

Although the general right to privacy is well settled in constitu-tional jurisprudence, the contours of the right to privacy are ever-changing. Maura McIntyre delves into one of the more contentious offshoots of the right to privacy—sterilization of the mentally disabled. For over a century, courts have granted petitions for sterilization of the mentally disabled. As the eugenics movement faded, however, new rationales for sterilization arose. More concerned with the individual rights of the mentally disabled, modern courts have applied various standards to evaluate petitions for sterilization.

Unfortunately, a reliable judicial approach to petitions for sterilization is still lacking. Consequently, the results across the country have been in-consistent and, in many cases, unjust. McIntyre analyzes the various ap-proaches that courts have taken to evaluate petitions for sterilization. Considering the ramifications of each approach, McIntyre recommends a “revised best interest” inquiry to best assure the protection of the mental-ly disabled. In the end, the recommendation seeks to bring justice and consistency to this overlooked, yet important, area of law.

The U.S. Supreme Court has repeatedly held that all women, mar-ried or single, have a right to privacy when making family planning deci-sions, including the right to receive and use birth control. Nearly all sex-ually active women choose to use oral contraceptives, the most popular form of birth control, during their child-bearing years for a variety of medical and physical reasons. Because these contraceptives require a prescription, pharmacists play a critical role in the reproductive health of a majority of American women. However, a string of reported incidents in recent years reflects an alarming trend: pharmacists, despite legal and professional obligations, are refusing to dispense prescription contracep-tives because of their own moral and religious objections. Despite the established standard of care that places the patient as the focus of the pharmaceutical profession, four states have already passed “pharmacist refusal clauses,” laws or regulations that grant pharmacists the right to refuse to fill prescriptions based on personal beliefs. These laws explicit-ly allow pharmacists to circumvent their professional duties and protect pharmacists from adverse employment actions for doing so. In this note, the author argues that pharmacist refusal clauses fail to strike a proper balance between pharmacists’ rights to exercise their own conscience and patients’ rights to access legal prescriptions. Additionally, these regulations unreasonably expand the initial purpose of refusal laws, are sexually discriminatory, and violate pharmacists’ code of ethics. To ad-dress these problems, the author suggests that rather than enacting new pharmacist refusal clauses or adding transfer provisions to current laws, a variety of organizations—federal and state legislatures, state pharmacy boards, and the pharmaceutical community—must work together to adopt legislation and alternative policies that will balance the competing rights of pharmacists and patients, ultimately guaranteeing that women are never denied access to legally prescribed birth control.

Every state regulates the substance of health insurance contracts is-sued to its residents, requiring the coverage of certain treatments, ser-vices, and providers. These state mandated health benefit laws apply on-ly to insured health plans, while self-insured plans (typically sponsored by a large employer) are exempt. The disparate application of state mandated benefit laws is criticized as contributing to an unjust and ex-pensive system of health care in the United States. As a result, state mandated benefit laws are under attack and the subject of numerous fed-eral reform efforts. This article explores three possible approaches to mandated benefit reform: (1) exclusive state regulation of mandated ben-efits, (2) deregulation of mandated benefits, and (3) positive federal regulation of mandated benefits. The article concludes that there are compelling arguments against both exclusive state regulation and deregulation. While federal regulation is far from perfect, it has significant advantages over the status quo and represents the best way forward for mandated benefit reform. Current and proposed mandated benefit reforms are analyzed in light of these conclusions. The article exposes these reform efforts as coordinated movements toward deregulation, an option that, while respecting individual rights, will harm the sick while improving the position of the healthy.

For over half a century, the scope of the “search incident to arrest” exception to the Fourth Amendment’s search warrant requirement re-peatedly expanded and contracted. In Chimel v. California, the Supreme Court attempted to stabilize the doctrine by limiting searches incident to arrest to the areas that needed to be searched to ensure officer safety and to preserve destructible evidence. In the more than thirty-five years since Chimel, however, the Court has again steadily increased the reach of the exception, allowing police officers to search areas—in particular, pas-senger compartments of vehicles—when arrestees have no realistic access to those areas.

In the Supreme Court’s most recent exploration of the search incident to arrest doctrine, Thornton v. United States, Justice Antonin Scalia au-thored a concurrence that challenged the majority’s continued adherence to the twin rationales identified in Chimel, officer safety and evidence preservation. At least with regard to passenger compartment searches, Justice Scalia instead suggested that the Court should return to a prior justification, the interest in gathering evidence relevant to the crime that is the basis for an arrest. Based on this alternative rationale, he main-tained that a warrantless search of a vehicle incident to the arrest of an occupant is unreasonable when the arrest is for an offense that furnishes no reasonable basis for believing evidence might be found in the vehicle. On the other hand, he asserted that such a search is reasonable when the offense supporting the occupant’s arrest is one that engenders a reasona-ble basis for believing that evidence might be found in the vehicle.

This article examines the ramifications of Justice Scalia’s proposed revi-sion of the search incident to arrest doctrine and assesses whether the consequences of that revision are consistent with core Fourth Amendment principles. The author finds merit in Justice Scalia’s conclusion that of-ficers should not be allowed to search a vehicle incident to the arrest of an occupant for a “nonevidentiary offense”—i.e., an offense of a nature that makes it implausible to believe that probative evidence could be nearby. The author disagrees, however, with Justice Scalia’s conclusion that a revived evidence gathering rationale can support a thorough vehi-cle search whenever an occupant is arrested for an “evidentiary of-fense”—i.e., an offense of a nature that makes it plausible to believe that probative evidence might be present. According to the author, the grant of automatic authority to search vehicles in such cases is inconsistent with the Fourth Amendment’s probable cause requirement. Because the mere fact of an arrest does not give rise to a fair probability that evidence will be found nearby, a search lacks adequate Fourth Amendment justification. The author concludes that a search of a vehicle incident to the arrest of an occupant for any offense is permissible only when there is good reason to keep the occupant in a location that affords access to weapons or evidence inside the vehicle. In such a case, presumed interests in officer safety and evidence preservation can justify the privacy invasion occasioned by a search.

In this review essay, Professor Michael Steven Green argues that Dworkin’s reputation among his fellow philosophers has needlessly suf-fered because of his refusal to back down from his “semantic sting” ar-gument against H. L. A. Hart. Philosophers of law have uniformly rejected the semantic sting argument as a fallacy. Nevertheless Dworkin reaffirms the argument in Justice in Robes, his most recent collection of essays, and devotes much of the book to stubbornly, and unsuccessfully, defending it. This is a pity, because the failure of the semantic sting ar-gument in no way undermines Dworkin’s other arguments against Hart.

Justice in Robes, by Ronald Dworkin. Belknap Press of Harvard University Press, 2006.

The First Amendment’s Free Exercise Clause forbids the govern-ment from creating laws that prohibit the free exercise of religion, and its Establishment Clause prohibits laws that respect an establishment of re-ligion. Thus far, judicial attempts to interpret the meaning and scope of the twin Religion Clauses have resulted in an inconsistent and confused body of law. This note argues that the Supreme Court decision in NLRB v. Catholic Bishop of Chicago furthered this confusion by avoiding the issue of whether labor relations statutes, namely the National Labor Relations Act (NLRA), may be constitutionally applied to religious schools so as to require collective bargaining between the school and its lay faculty. Disposing this case on statutory interpretation grounds, the Court sidestepped the constitutional question and approached the issue in a manner that has proved problematic for the lower courts. Furthermore, the constitutional doctrines that underlay the Court’s decision have been altered by subsequent cases.

The Catholic Bishop problem implicates the freedom of association rights of lay teachers, the freedom of religious exercise rights of schools, and the prohibition of laws that establish religion. Because the courts’ ap-proaches to reconciling these interests have been varied and oftentimes flawed, congressional action is the most appropriate resolution. The au-thor therefore proposes an NLRA amendment that fully addresses the var-ious contours of the Catholic Bishop problem and vindicates both the as-sociation rights of lay teachers and the free exercise rights of schools.

Federal courts have diversity jurisdiction over controversies that satisfy an amount in controversy requirement and are between citizens of different states. Although corporations are artificial beings, courts must determine their citizenship to decide whether diversity jurisdiction is proper. For jurisdictional purposes, Congress has stated that a corpora-tion is a citizen of its state of incorporation as well as the state of its principal place of business. In the past two decades, unincorporated business associations have risen in popularity for a variety of reasons, including the increasing willingness of states to treat hybrid entities such as limited liability companies as partnerships for tax purposes. Current jurisdictional law equates the citizenship of an unincorporated association with the citizenship of each of its members, making it difficult for unincorporated businesses to bring controversies before federal courts. The “doctrinal wall” articulated by the Supreme Court mandates that a corporation is treated as a citizen in its own right, but an unincorporated association is not. Commentators have expressed widespread dissatisfaction with this rule. This note argues that the doctrinal wall should be abolished and that courts should treat unincorporated associations similarly to corporations for purposes of diversity jurisdiction. Because judicial action is unlikely, the author proposes an amendment to the federal diversity-jurisdiction statute adopting a uniform citizenship test for all business associations.

The Family and Medical Leave Act (FMLA), passed in 1993, was one of the first federal laws in the United States that addressed family and medical leave. Congress vested the Secretary of Labor (Secretary) with the authority to prescribe regulations necessary to carry out this legislation. Pursuant to this authority, the Secretary issued a regulation that purported to prohibit employees from waiving their rights under the FMLA. Although this regulation is valid, the question of whether an employee can waive her FMLA claims as part of a severance agreement has led to inconsistent results.

In this note, Carol Wong asserts that parties should be permitted to settle their FMLA claims and then asks what standard should be applied to de-termine the validity of such waivers. In order to answer this question, Wong scrutinizes employees’ ability to release their claims under other federal employment statutes and ultimately proposes that Congress amend the FMLA to include a clear and comprehensive guideline for waivers modeled on provisions of the Older Workers Benefit Protection Act. Such guidelines adequately balance competing tensions between the costs and benefits of waivers, serve both the employer’s and employee’s interests, and reflect the interrelationship between all employment statutes.