[Pages 517-548]
OPINING ON DEATH: WITNESS SENTENCE RECOMMENDATIONS IN CAPITAL TRIALS
Wayne A. Logan*

Abstract:  Despite the Supreme Court’s command that capital prosecutions be free of undue arbitrary and capricious influences, the trials themselves are becoming increasingly emotional and personalized. This Article addresses a key outgrowth of this evolution: the increasingly common practice of witnesses opining on whether a defendant should be put to death, despite the Court’s apparent prohibition of such testimony. The Article addresses why this practice is likely to continue, and advances several reasons why the Supreme Court should impose an unequivocal bar on sentence opinion testimony in capital trials.

[Pages 549-584]
WHO OWNS THE COPYRIGHT TO FACULTY-CREATED WEB SITES?: THE WORK-FOR-HIRE DOCTRINE'S APPLICABILITY TO INTERNET RESOURCES CREATED FOR DISTANCE LEARNING AND TRADITIONAL CLASSROOM COURSES
Gregory Kent Laughlin*

Abstract: The Internet has spawned an increased interest in distance education and in using technology to enhance traditional classroom courses. It has also created new markets for faculty-created works. This Article explores who owns these materials. The Article addresses the competing interests of faculty and universities. Educators are concerned about academic freedom and control of their work product. Universities are concerned about competition from their own faculty and the continued right to use faculty-created material in which they have invested considerable resources. Both sides are interested in who gets paid when others seek to use these materials. The Article suggests that courts recognize a teachers’ exception to the work-for-hire doctrine, vesting ownership in faculty-creators. It also offers proposals for written agreements which allocate rights between faculty and universities.

[Pages 585-626]
A CRITIQUE OF THE MOTIVATIONAL ANALYSIS IN WRONGFUL CONCEPTION CASES
Iraida J. Alvarez

Abstract:  Most states now recognize a tort cause of action for wrongful conception, typically resulting from a failed sterilization. States differ, however, in determining whether damages should be awarded for child-rearing expenses and what factors juries can consider in setting such damage awards. This Note argues that one commonly used factor, the parents’ motivation for selecting sterilization, is irrelevant and leads to inequitable results. Since the right to use contraception is constitutionally protected, the choice to sterilize in order to avoid financial burdens associated with child-rearing should not be given preferential treatment to sterilizations motivated by concerns of genetic defects or for the mother’s health.

[Pages 627-658]
IN THE AFTERMATH OF THE "TERMINATOR" TECHNOLOGY CONTROVERSY: INTELLECTUAL PROPERTY PROTECTIONS FOR GENETICALLY ENGINEERED SEEDS AND THE RIGHT TO SAVE AND REPLANT SEED
Jeremy P. Oczek

Abstract:  Throughout history, farmers have engaged in the practice of saving seed from each harvest to use in planting the following year’s crop. This practice, however, has been a significant concern for those developing new varieties of seed. The “terminator” technology was developed to prevent the saving and replanting of genetically engineered seeds by blocking the germination of these seeds after one growing season. The terminator technology, however, caused worldwide controversy over the scope of intellectual property protections for genetically engineered seeds used in agriculture because farmers believed that seeds incorporating the terminator technology would interfere with the traditional and historical right to save and replant seed. This Note argues that use of the terminator technology in genetically engineered seeds would be an effective way to enforce existing intellectual property protections and that public property doctrines would fail to recognize a common law right to save and replant seed.

[Pages 659-698]
STATE POWER TO REGULATE ALCOHOL UNDER THE TWENTY-FIRST AMENDMENT: THE CONSTITUTIONAL IMPLICATIONS OF THE TWENTY-FIRST AMENDMENT ENFORCEMENT ACT
John Foust

Abstract:  Over forty states have direct shipment laws prohibiting, or severely limiting, an individual’s ability to purchase wine from outside of the state and have it shipped home via a common carrier. Congress recently proposed a bill entitled the Twenty-first Amendment Enforcement Act (“Enforcement Act”) that would authorize State Attorneys General to bypass the state courts and bring action in the federal courts to enforce direct shipment laws. This Note argues that direct shipment laws are unconstitutional, and that the proposed Enforcement Act cannot enable states to enforce these unconstitutional state laws.

[Pages 699-753]
URGENT COMPASSION: MEDICAL MARIJUANA, PROSECUTORIAL DISCRETION AND THE MEDICAL NECESSITY DEFENSE
Andrew J. LeVay*

Abstract:  For centuries physicians and patients have extolled the medical benefits of marijuana. The federal government, however, refuses to retreat from its dogged war on drugs, preventing those in serious medical need from realizing marijuana’s therapeutic potential. Numerous states have shown their opposition to the federal government’s position, as well as their compassion for the seriously ill, by placing pro-medical marijuana initiatives on their election ballots or by introducing such legislation in their state legislatures. Furthermore, the United States Court of Appeals for the Ninth Circuit has recently rendered two landmark decisions holding that the common law medical necessity defense is available to medical marijuana defendants who are criminally prosecuted under federal law, despite the federal government’s general marijuana prohibition. Because a change in federal drug policy is unlikely in the near future, one way federal prosecutors can avoid this conflict with the federal judiciary, as well as respect the will of the people in states that have passed pro-medical marijuana laws, is to exercise appropriate prosecutorial discretion, refusing to prosecute medical marijuana patients. This especially should be the case in states where the citizens have clearly expressed their values regarding medical marijuana through the initiative or legislative process.