Jacob L. Todres


In my view, this area is relatively straightforward. There are three views that have developed. Once the views are apprehended, it should be relatively easy for a court to choose which view to follow. By presenting and analyzing the three views, this area will be appropriately elucidated and subsequently given the thoughtful attention it warrants.

In Part II, I will focus upon each of the three views and explore the rationale for each view. In Part III, I will trace the development of each of the views, especially the minority view and more modem, intermediate view. The goal of this discussion is to arrive at a tally of the jurisdictions following each view, remaining fully cognizant that such tallies are, at best, subject to dispute and also quite transient. My reflections on each of the three views and their approaches will be presented in Part IV. My conclusion is that the minority view, while having made an important contribution to the development of the law in this area, should give way to the modem, intermediate view and that the few states that continue to follow it should change and adopt the modem view. A brief conclusion will follow in Part V.

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