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Volume 61, Issue 6
Intent and Consent in the Tort of Battery: Confusion and Controversy

By Nancy J. Moore | 61 Am. U. L. Rev. 1585 (2012)

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent.  Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability.  Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various stages of the Restatement (Third) of Torts and the current position of the ALI that it will not attempt a restatement of the non-economic intentional torts that were addressed in great detail in the Restatement (Second) on the grounds that intentional tort doctrine is clear and that the Restatement (Second) provisions have been widely adopted.

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Don't Just Do Something! E-Hearsay, the Present Sense Impression, and the Case for Caution in the Rulemaking Process

By Liesa L. Richter | 61 Am. U. L. Rev. 1657 (2012)

This Article weighs in on the cutting-edge debate regarding the effects of electronic hearsay or “e-hearsay” on the truth-seeking function of the trial process. Professor Jeffrey Bellin recently raised an urgent call to revise the present sense impression exception to the hearsay rule as a result of the explosion of hearsay on-line, recommending a “percipient witness” amendment to the rule. This Article responds to Professor Bellin and argues that a “percipient witness” requirement is not only unnecessary, but potentially deleterious to the goal of a rational and fair trial system to achieve accurate fact-finding.

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Rule 3.8, the Jencks Act, and How the ABA Created a Conflict Between Ethics and the Law on Prosecutorial Disclosure

By Kirsten M. Schimpff | 61 Am. U. L. Rev. 1729 (2012)

A prosecutor’s duty to disclose evidence favorable to the defense has proved to be one of the thorniest issues in criminal practice, no doubt in large part due to the complex, overlapping, and, at times, conflicting web of rules and standards governing that obligation: constitutional doctrine, statutory law, criminal procedure rules, and state ethics rules. The Standing Committee on Ethics and Professional Responsibility of the American Bar Association recently issued an expansive interpretation of Rule 3.8(d) of the Model Rules of Professional Conduct, which governs prosecutorial disclosure. As interpreted in Formal Opinion 09-454, Rule 3.8(d) is now in direct conflict with a federal statute governing disclosure of witness statements.

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COMMENT: A Minor Conflict: Why the Objectives of Federal Sex Trafficking Legislation Preempt the Enforcement of State Prostitution Laws Against Minors

By Susan Crile | 61 Am. U. L. Rev. 1783 (2012)

The doctrine of federal preemption provides a framework for resolving the tension between the treatment of prostituted minors under federal sex trafficking law and criminal prostitution laws in many states. Federal preemption doctrine holds that state laws are preempted if they conflict with a federal law by frustrating its purpose. The federal Trafficking Victims Protection Act (TVPA) defines individuals under age eighteen who engage in commercial sex as per se victims of severe sex trafficking. The TVPA seeks to protect these individuals by treating them as victims and providing them with services. Many states, on the other hand, define prostitution without regard to age and enforce criminal prohibitions against the same category of minors that the federal law seeks to protect.

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COMMENT: Until the Plenary Power Do Us Part: Judicial Scrutiny of the Defense of Marriage Act in Immigration After Flores-Villar

By Jessica Portmess | 61 Am. U. L. Rev. 1825 (2012)

The Defense of Marriage Act (DOMA) effectively bars a U.S. citizen from sponsoring a foreign national same-sex spouse to immigrate to the United States. The plenary power doctrine—a standard of extraordinary deference to the political branches in immigration—may hinder judicial scrutiny of DOMA in the immigration context. In the past two decades, and most recently in Flores-Villar v. United States, the Supreme Court has failed to establish boundaries of judicial deference in immigration cases; however, dissents throughout the Court’s plenary power case law illuminate possible limitations on the doctrine’s scope.

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NOTE: "Standing" in the Way of Equality? The Myth of Proponent Standing and the Jurisdictional Error in Perry v. Brown

By Andrew Kim | 61 Am. U. L. Rev. 1867 (2012)

February 7, 2012 was a triumphant day for marriage equality activists. Relying upon the precedent set forth in Romer v. Evans, the U.S. Court of Appeals for the Ninth Circuit invalidated a California initiative restricting marriage to opposite-sex couples in Perry v. Brown (Perry VIII). Declaring that the initiative, Proposition 8, deprived same-sex couples of a “societal status that affords dignity to [same-sex] relationships” by barring recognition of those relationships as “marriage,” the court concluded that “the People of California violated the Equal Protection Clause” by passing the initiative. To do so, the court first determined whether its jurisdiction was properly invoked in the appeal; its analysis centered on the question of standing. The court concluded that the proponents had standing, based largely on a theory that initiative proponents were upholding the integrity of the initiative process.

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