CHRISTOPHER J. BUCCAFUSCO, University of Chicago - Law School
Email: chrstphr@uchicago.edu

Spiritualism was one of the most salient cultural phenomena of late-nineteenth-century American life. The belief of considerable numbers of respectable citizens that they could communicate with the dead via an entranced medium called into question both popular and scientific conceptions of rationality, volition, and freedom. In turn, these changing ideas about the mind challenged American law's commitment to its belief in free and reasonable legal actors. This Article, the first to consider Spiritualism's implications for American law, examines the legal reaction to the anxieties Spiritualism generated for the age of contract. Principally, it looks at the judicial response to cases of Spiritualists' wills that were challenged on the grounds of insanity and undue influence. In dealing with such cases, I argue, American judges adopted a realist, pragmatic strategy of promoting polyphonic discussion and preserving democratic decision making. Approaching the subject from the perspective of cultural legal history, I suggest that popular culture, science, and the law were mutually constitutive discourses in which nineteenth-century Americans enacted their anxieties about the mind, the will, and the family. Finally, I argue that a contextualized understanding of these nineteenth-century debates can suggest much about current legal debates about rationality, responsibility, and volition engendered by recent discoveries in behavioral economics, the psychology of emotions, and cognitive neuroscience.

BRIAN RAY, Cleveland-Marshall College of Law
Email: brian.ray@law.csuohio.edu

There is an active and heated debate over whether socioeconomic rights should be included in modern constitutions because of their supposed "positive" character and the difficult separation-of-powers and institutional-competence concerns such rights raise. The controversy over the nature of socioeconomic rights and whether constitutions should include them is connected to the issue of how to enforce these rights when they are included. The South African Constitutional Court is the leading example of a court dealing with these enforcement issues, and its early decisions have been hailed by many, including Mark Tushnet and Cass Sunstein, as developing a uniquely effective approach to enforcing socioceconomic rights. Tushnet suggests that the Court has adopted a "weak-form" approach to enforcement that gives the legislature a substantial role to play in interpreting these rights. Sunstein similarly argues that the court has adopted an administrative-law approach that limits the Courts' role to assessing whether policies adopted by the other branches are reasonable. Many in South Africa, however, have been critical of the Court's approach, arguing that it fails to give full effect to the promise of these rights by inappropriately limiting the Court's role.

On February 19, 2008 the Constitutional Court handed down its most recent decision in the socioeconomic rights area, Occupiers of 51 Olivia Road v. City of Johannesburg. City of Johannesburg, and a landmark housing settlement that the Court approved in that decision, illuminate the Court's approach to socioeconomic rights in important ways that call into question the accounts offered by both sides of this debate. This Article addresses the debate over the Constitutional Court's enforcement of socioeconomic rights and draws on City of Johannesburg litigation and other recent developments to offer a new framework for understanding the Court's approach to socioeconomic rights.

Both sides of the debate have failed to adequately consider two key aspects of the Court's early cases. First, the Court has consistently left open the possibility for evolution towards stronger forms of enforcement for these rights in subsequent cases. Second, in two of these cases, the Court has concretely demonstrated its willingness to take a direct role in enforcing socioeconomic rights. Focusing on these two aspects of the early cases, it is evident that the Court has described the possibility for a mixed form of review that is potentially more robust than both sides of the debate claim.

Parts II and III of this Article outline the Court's early cases and the debate that has developed around them. Part IV critiques both sides of this debate and develops a new account of the Constitutional Court's approach to socioeconomic rights. Part V analyzes recent developments in the socioeconomic rights area, including the City of Johannesburg litigation as well as recent lower-court cases, to assess the effectiveness of the Court's policentric approach.

COLIN MILLER, John Marshall Law School
Email: 7millerc@jmls.edu

In the common law days, parties seeking to prove the contents of documents were required to produce the original documents or account for their non-production. Pursuant to the Best Evidence Rule, if such parties neither produced the originals nor accounted for their non-production, courts prevented them from proving their contents through secondary evidence such as handwritten copies or testimony. With the invention of new technologies such as the process of xerography, however, states in the twentieth century began enacting exceptions to the Best Evidence Rule which allowed for the admission of duplicates created without manual transcription even when proponents could not account for the non-production of originals. Enacted in 1975, Federal Rule of Evidence 1003 is consistent with the emerging state trend as it indicates that "[a] duplicate is admissible to the same extent as the original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." This article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scatter shot approach which they have taken has resulted in an improperly narrow construction and application of the exception. It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.

ANTHONY MICHAEL CIOLLI, University of Pennsylvania Law School
Email: aciolli@gmail.com

The popularization of the Internet has ensured that, for the first time in human history, speech is in a position where it can become truly free. In 1996 Congress, hoping to preserve and promote a vibrant and competitive free marketplace of ideas on the Internet, passed Section 230 of the Communications Decency Act, a controversial statute that grants the owners of private online forums and other Internet intermediaries unprecedented immunity from liability for defamation and related torts committed by third party users. Since then, a fierce debate has raged over how to strike the proper balance between the seemingly competing values of promoting free speech and compensating victims of Internet defamation.

This Article argues that this conflict between speech and victim compensation is largely illusory, persisting primarily due to misconceptions about the Internet and nostalgia for the common law. Since these values do not inherently conflict with each other, it is unnecessary to strike a balance between them because Congress can pass legislation enhancing both values without detracting from either. Congress, in order to account for the sudden and unexpected transition from the walled garden intermediaries of the 1990s to the Web 2.0 intermediaries of today, should amend Section 230 to include an attorneys' fee-shifting provision in order to provide the typical Web 2.0 intermediary with an incentive to protect the speech of its users. Similarly, Congress or state governments should create the tort of no-fault defamation to provide the majority of defamation victims with a more cost-effective and efficient means of achieving the vindication they desire. Finally, Congress should consider instituting an insurance scheme or other system to provide compensation to those who have suffered tangible economic loss or irreparable harm as a result of Internet defamation, as well as pass legislation that would reduce the potential negative effects of defamatory Internet speech. These solutions whether implemented individually or as a package would result in a substantial improvement over the status quo, and also produce better, more efficient outcomes than alternate proposals that seek to promote victim compensation at the expense of speech or vice versa.