Pub Date : 2017-12-31DOI: 10.12987/9780300134872-004
T. Carter
{"title":"Chapter 2. Contracts and Commitments","authors":"T. Carter","doi":"10.12987/9780300134872-004","DOIUrl":"https://doi.org/10.12987/9780300134872-004","url":null,"abstract":"","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80090615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-31DOI: 10.12987/9780300134872-009
{"title":"Appendix A: A Time Line for Oklahoma! 5 May 1942 to 31 March 1943","authors":"","doi":"10.12987/9780300134872-009","DOIUrl":"https://doi.org/10.12987/9780300134872-009","url":null,"abstract":"","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"44 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76876341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-12-31DOI: 10.12987/9780300134872-fm
{"title":"Frontmatter","authors":"","doi":"10.12987/9780300134872-fm","DOIUrl":"https://doi.org/10.12987/9780300134872-fm","url":null,"abstract":"","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74346536","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article is intended to contribute to the literature concerning the relationship between agricultural law and tort liability by examining cases involving the application of the res ipsa loquitur doctrine to cases involving agriculture. Courts throughout the country vary on whether to apply res ipsa loquitur to cases involving agricultural interests. This Article finds that the following three general rules can be gleaned depending upon the fact pattern: 1. A majority of courts have held that the res ipsa loquitur doctrine does not apply in cases involving crop or barn fires. 2. A majority of courts hold that the res ipsa loquitur doctrine applies in cases involving pesticide drift, the application of pesticides by crop dusting and spraying companies, as well as application of pesticides from contaminated barrels of insecticide. 3. There is a split in authority on whether res ipsa loquitur applies in cases involving escaped livestock.
{"title":"Agriculture and Res Ipsa Loquitur","authors":"Chad G. Marzen","doi":"10.2139/SSRN.2954231","DOIUrl":"https://doi.org/10.2139/SSRN.2954231","url":null,"abstract":"This Article is intended to contribute to the literature concerning the relationship between agricultural law and tort liability by examining cases involving the application of the res ipsa loquitur doctrine to cases involving agriculture. \u0000Courts throughout the country vary on whether to apply res ipsa loquitur to cases involving agricultural interests. This Article finds that the following three general rules can be gleaned depending upon the fact pattern: 1. A majority of courts have held that the res ipsa loquitur doctrine does not apply in cases involving crop or barn fires. 2. A majority of courts hold that the res ipsa loquitur doctrine applies in cases involving pesticide drift, the application of pesticides by crop dusting and spraying companies, as well as application of pesticides from contaminated barrels of insecticide. 3. There is a split in authority on whether res ipsa loquitur applies in cases involving escaped livestock.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"70 1","pages":"679"},"PeriodicalIF":0.0,"publicationDate":"2017-04-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48942417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach. This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.
{"title":"Kiobel and Extraterritoriality: Here, (Not) There, (Not Even) Everywhere","authors":"E. Swaine","doi":"10.2139/SSRN.2958277","DOIUrl":"https://doi.org/10.2139/SSRN.2958277","url":null,"abstract":"The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach. This Article, based on remarks delivered at the University of Oklahoma Law School, puts a heavy emphasis on territoriality — not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the more expansive readings of the ATS, though it stops short of Justice Alito’s prescription. If future cases are to depart substantially from territoriality, the better path is not to explore what Kiobel left unresolved, but to revisit what it purported to settle.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"5 1","pages":"23"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68445122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Belief-state ascription—determining what someone “knew,” “believed,” was “aware of,” etc.—is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology—falling under the banner of “Experimental Epistemology”—reveals how laypeople’s understandings of mens rea concepts differ systematically from what scholars, courts, and perhaps legislators, have assumed.As implemented, mens rea concepts are much more context-dependent and normatively evaluative than the conventional wisdom suggests, even assuming that jurors are following jury instructions to the letter. As a result, there is less difference between knowledge and recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean different things in different contexts, resulting in mens rea findings systematically responsive to aspects of the case traditionally considered irrelevant to the meaning of those terms.This Article provides the first systematic account of the factors driving jurors’ ascriptions of the specific belief states criminal law invokes. After surveying mens rea jury instructions, introducing the Experimental Epistemology literature to the legal literature on mens rea, and examining the implications of that literature for criminal law, this Article considers ways to begin bridging the surprisingly large gap between mens rea theory and practice.
{"title":"Belief States in Criminal Law","authors":"James Macleod","doi":"10.31235/osf.io/d9zg2","DOIUrl":"https://doi.org/10.31235/osf.io/d9zg2","url":null,"abstract":"Belief-state ascription—determining what someone “knew,” “believed,” was “aware of,” etc.—is central to many areas of law. In criminal law, the distinction between knowledge and recklessness, and the use of broad jury instructions concerning other belief states, presupposes a common and stable understanding of what those belief-state terms mean. But a wealth of empirical work at the intersection of philosophy and psychology—falling under the banner of “Experimental Epistemology”—reveals how laypeople’s understandings of mens rea concepts differ systematically from what scholars, courts, and perhaps legislators, have assumed.As implemented, mens rea concepts are much more context-dependent and normatively evaluative than the conventional wisdom suggests, even assuming that jurors are following jury instructions to the letter. As a result, there is less difference between knowledge and recklessness than is typically assumed; jurors consistently “over”-ascribe knowledge to criminal defendants; and concepts like “belief,” “awareness,” and “conscious disregard” mean different things in different contexts, resulting in mens rea findings systematically responsive to aspects of the case traditionally considered irrelevant to the meaning of those terms.This Article provides the first systematic account of the factors driving jurors’ ascriptions of the specific belief states criminal law invokes. After surveying mens rea jury instructions, introducing the Experimental Epistemology literature to the legal literature on mens rea, and examining the implications of that literature for criminal law, this Article considers ways to begin bridging the surprisingly large gap between mens rea theory and practice.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"68 1","pages":"497"},"PeriodicalIF":0.0,"publicationDate":"2016-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69652035","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Akhil Amar, at the end of AMERICA'S UNWRITTEN CONSTITUTION (2012), mentions the idea of postponing for a long while the date on which newly adopted constitutional reforms become effective. The rationale for this idea, as Amar explains, is to impose a Rawlsian "veil of ignorance" on the adopters of the constitutional reforms, so that they have less ability to act strategically on behalf of their own descendants. This essay develops how Amar's idea might best be operationalized. In doing so, it proposes the creation of a nonpartisan Posterity College, with each state sending the same number of members as the state has in the Electoral College. The nation's two immediate past presidents from different political parties (now Clinton and Bush) would serve as the bipartisan co-chairs of this Posterity College. The essay discusses the procedures that this Posterity College would use for its deliberations, how its members would be appointed, some of the potential reforms it might consider, and how its proposals would become part of the Constitution but taking effect only long afterwards.
{"title":"The Posterity Project: Developing a Method for Long-Term Political Reform","authors":"E. Foley","doi":"10.2139/SSRN.2326423","DOIUrl":"https://doi.org/10.2139/SSRN.2326423","url":null,"abstract":"Akhil Amar, at the end of AMERICA'S UNWRITTEN CONSTITUTION (2012), mentions the idea of postponing for a long while the date on which newly adopted constitutional reforms become effective. The rationale for this idea, as Amar explains, is to impose a Rawlsian \"veil of ignorance\" on the adopters of the constitutional reforms, so that they have less ability to act strategically on behalf of their own descendants. This essay develops how Amar's idea might best be operationalized. In doing so, it proposes the creation of a nonpartisan Posterity College, with each state sending the same number of members as the state has in the Electoral College. The nation's two immediate past presidents from different political parties (now Clinton and Bush) would serve as the bipartisan co-chairs of this Posterity College. The essay discusses the procedures that this Posterity College would use for its deliberations, how its members would be appointed, some of the potential reforms it might consider, and how its proposals would become part of the Constitution but taking effect only long afterwards.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"66 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68105408","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the United States Supreme Court’s “high profile” cases this Term was “the GPS case,” United States v. Jones, which gained attention beyond legal circles to a wide variety of mainstream and popular media sources, both in print and online. When the decision was announced in January 2012, though, nearly everyone was left underwhelmed by the Court’s resolution of the case, at least compared to the anticipation beforehand. In one respect, at least, the Court was unanimous and clear: the defendant’s argument prevailed, and the Court ruled that the Fourth Amendment applied to what the police had done on the facts of the case. Other than that, however, the Court did not provide very much guidance about the Fourth Amendment implications of GPS surveillance of criminal suspects – or, more broadly, the authority of the government in general to maintain surveillance of the public movements of people in everyday life. The lack of clarity was made particularly acute because the underlying reasoning beneath the three opinions reveals a Court seemingly intent on avoiding the complex and difficult issues of Fourth Amendment rights in a digital, internet-interconnected age and putting off the tough judgment calls for another case another day. As is often true of the Court’s decisions, though, the reality is more nuanced than initial appearances might seem to indicate. While the opinions in Jones leave open several significant questions for resolution in future cases, they actually do provide answers to a number of subsidiary questions. Until those cases come before the Court, it is important not to lose sight of the answers the Court did provide in Jones, both for resolving cases in the lower courts in the meantime and for considering how the justices might approach those later cases when the day arrives. Consequently, it is worth taking the time to carefully consider not only the questions the Jones decision leaves open, but also the ones it answers. The narrowness of Jones may seem to make it an insignificant way station on the road to more definitive rulings – but it turns out there may be more to Jones after all.
{"title":"Five Answers and Three Questions after United States v. Jones (2012), the Fourth Amendment 'GPS Case'","authors":"B. Priester","doi":"10.2139/SSRN.2030390","DOIUrl":"https://doi.org/10.2139/SSRN.2030390","url":null,"abstract":"One of the United States Supreme Court’s “high profile” cases this Term was “the GPS case,” United States v. Jones, which gained attention beyond legal circles to a wide variety of mainstream and popular media sources, both in print and online. When the decision was announced in January 2012, though, nearly everyone was left underwhelmed by the Court’s resolution of the case, at least compared to the anticipation beforehand. In one respect, at least, the Court was unanimous and clear: the defendant’s argument prevailed, and the Court ruled that the Fourth Amendment applied to what the police had done on the facts of the case. Other than that, however, the Court did not provide very much guidance about the Fourth Amendment implications of GPS surveillance of criminal suspects – or, more broadly, the authority of the government in general to maintain surveillance of the public movements of people in everyday life. The lack of clarity was made particularly acute because the underlying reasoning beneath the three opinions reveals a Court seemingly intent on avoiding the complex and difficult issues of Fourth Amendment rights in a digital, internet-interconnected age and putting off the tough judgment calls for another case another day. As is often true of the Court’s decisions, though, the reality is more nuanced than initial appearances might seem to indicate. While the opinions in Jones leave open several significant questions for resolution in future cases, they actually do provide answers to a number of subsidiary questions. Until those cases come before the Court, it is important not to lose sight of the answers the Court did provide in Jones, both for resolving cases in the lower courts in the meantime and for considering how the justices might approach those later cases when the day arrives. Consequently, it is worth taking the time to carefully consider not only the questions the Jones decision leaves open, but also the ones it answers. The narrowness of Jones may seem to make it an insignificant way station on the road to more definitive rulings – but it turns out there may be more to Jones after all.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"65 1","pages":"491"},"PeriodicalIF":0.0,"publicationDate":"2012-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67868640","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries and proposes two alternative legislative solutions for the over-taxing of plaintiffs in these cases. While plaintiffs who recover personal injury awards typically receive favorable tax treatment, those who receive interest on such awards are taxed on the interest and often are not able to utilize deductions for attorney’s fees and other costs paid to obtain the award. Further, the attorney’s portion of the recovery in a contingency fee arrangement will also be included in the plaintiff’s gross income. The result is that the plaintiff recovers less of the interest than the Treasury or her attorney, preventing the plaintiff from truly being made whole. After reviewing the historical and theoretical framework that produces these results, I suggest previously-proposed judicial solutions to the problem are impracticable and a legislative solution is necessary. I conclude with a proposal for two alternative legislative solutions - an expanded deduction and an exclusion - to provide relief for plaintiffs recovering partially taxable awards and to achieve the policy of fully compensating injured plaintiffs.
{"title":"Making Plaintiffs Whole: A Tax Problem of Interest","authors":"W. Foster","doi":"10.2139/SSRN.1934282","DOIUrl":"https://doi.org/10.2139/SSRN.1934282","url":null,"abstract":"This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries and proposes two alternative legislative solutions for the over-taxing of plaintiffs in these cases. While plaintiffs who recover personal injury awards typically receive favorable tax treatment, those who receive interest on such awards are taxed on the interest and often are not able to utilize deductions for attorney’s fees and other costs paid to obtain the award. Further, the attorney’s portion of the recovery in a contingency fee arrangement will also be included in the plaintiff’s gross income. The result is that the plaintiff recovers less of the interest than the Treasury or her attorney, preventing the plaintiff from truly being made whole. After reviewing the historical and theoretical framework that produces these results, I suggest previously-proposed judicial solutions to the problem are impracticable and a legislative solution is necessary. I conclude with a proposal for two alternative legislative solutions - an expanded deduction and an exclusion - to provide relief for plaintiffs recovering partially taxable awards and to achieve the policy of fully compensating injured plaintiffs.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"64 1","pages":"325"},"PeriodicalIF":0.0,"publicationDate":"2011-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67800833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In November 2010, Oklahoma voters adopted the “Save Our State Amendment,” which provides a catalog of legal sources that Oklahoma courts may use when deciding cases, as well as a catalog of forbidden sources, which include “the legal precepts of other nations or cultures,” international law, and “Sharia Law.” A federal district court has enjoined the entire amendment in response to establishment and free exercise concerns (and without considering whether the “Sharia Law” portions could be severed from the rest of the amendment). Much of the reaction to the amendment has focused on these same constitutional issues and related political concerns. This essay, by contrast, approaches the Save Our State Amendment from a conflict of laws perspective, and I treat it primarily as a choice of law statute. Seen in this way, the Save Our State Amendment is a wretched piece of work, at least under the rather formal issue spotting analysis that I present here. If the amendment goes into effect – whether in whole or in part – it will raise a host of questions, some of them difficult, that could take years to work their way through the Oklahoma judicial system. The first section of this essay addresses the scope of the amendment – the entities to and the situations in which it applies. The second section considers the amendment’s impact on Oklahoma choice of law doctrine through its list of approved and forbidden legal sources for Oklahoma courts (and, by extension, federal district courts in Oklahoma when hearing diversity cases). The final section is a brief conclusion that assesses the larger impact of the issues I identify in this essay.I do not claim to have identified or fully addressed every issue that the amendment raises or every problem that it creates, and I have largely left discussion of the religion clauses issues to other writers, but I trust that this essay says enough to convince even those who support the amendment’s political goals that this is an irresponsible way to make law.
{"title":"Oklahoma's Save Our State Amendment and the Conflict of Laws","authors":"J. Parry","doi":"10.2139/SSRN.1893707","DOIUrl":"https://doi.org/10.2139/SSRN.1893707","url":null,"abstract":"In November 2010, Oklahoma voters adopted the “Save Our State Amendment,” which provides a catalog of legal sources that Oklahoma courts may use when deciding cases, as well as a catalog of forbidden sources, which include “the legal precepts of other nations or cultures,” international law, and “Sharia Law.” A federal district court has enjoined the entire amendment in response to establishment and free exercise concerns (and without considering whether the “Sharia Law” portions could be severed from the rest of the amendment). Much of the reaction to the amendment has focused on these same constitutional issues and related political concerns. This essay, by contrast, approaches the Save Our State Amendment from a conflict of laws perspective, and I treat it primarily as a choice of law statute. Seen in this way, the Save Our State Amendment is a wretched piece of work, at least under the rather formal issue spotting analysis that I present here. If the amendment goes into effect – whether in whole or in part – it will raise a host of questions, some of them difficult, that could take years to work their way through the Oklahoma judicial system. The first section of this essay addresses the scope of the amendment – the entities to and the situations in which it applies. The second section considers the amendment’s impact on Oklahoma choice of law doctrine through its list of approved and forbidden legal sources for Oklahoma courts (and, by extension, federal district courts in Oklahoma when hearing diversity cases). The final section is a brief conclusion that assesses the larger impact of the issues I identify in this essay.I do not claim to have identified or fully addressed every issue that the amendment raises or every problem that it creates, and I have largely left discussion of the religion clauses issues to other writers, but I trust that this essay says enough to convince even those who support the amendment’s political goals that this is an irresponsible way to make law.","PeriodicalId":82221,"journal":{"name":"Oklahoma law review","volume":"65 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2011-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1893707","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67773429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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