Digital Commons Network^™

The Jeffersonian Treaty Clause, Gary S. Lawson

Faculty Scholarship

The Treaty Clause of the federal Constitution declares that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The consensus of doctrine, history, and scholarship, exemplified by the holding in Missouri v. Holland, 252 U.S. 416 (1920), is that the Treaty Clause affirmatively grants to the President and Senate a free-standing, quasi-legislative power that contains no internal constitutional limitations. Thomas Jefferson notably disagreed. Jefferson viewed the treaty power as a purely implementational power that could only be used to effectuate other federal powers. …

Congress, Controlled Substances, And Physician-Assisted Suicide: Elephants In Mouseholes, George J. Annas

Faculty Scholarship

The U.S. Supreme Court's decision in Gonzales v. Oregon to reject the U.S. attorney general's authority to prohibit physicians in Oregon from prescribing Schedule II drugs for their terminally ill patients to commit suicide can seem paradoxical and confusing. How is it that California cannot permit the patients of physicians who recommend marijuana, a Schedule I drug, to possess legally and use marijuana that they may need to survive, but Oregon can legally permit physicians to prescribe Schedule II drugs and patients to possess and use such drugs to end their lives?

The Patient's Right To Safety: Improving The Quality Of Care Through Litigation Against Hospitals, George J. Annas

Faculty Scholarship

It is the consensus of experts in the patient-safety field that little has changed to improve the safety of hospital care since the Institute of Medicine's 1999 report, To Err Is Human. The report noted that in order to be successful, “safety must be an explicit organizational goal that is demonstrated by clear organizational leadership. . . . This process begins when boards of directors demonstrate their commitment to this objective by regular, close oversight of the safety of the institutions they shepherd.” Leape and Berwick agree, noting that safety cannot become an institutional priority “without more sustained and …

State Convicts And Federal Courts: Reopening The Habeas Corpus Debate, Larry Yackle

Faculty Scholarship

I know what you are thinking. Of all the things that can conceivably happen in this field, the least likely (the very least likely) is that Congress will take a fresh look at federal habeas corpus for state prisoners. It was only in 1996 that Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA),' which ostensibly "reformed" the scheme by which prisoners employ federal habeas to challenge state criminal convictions or sentences. 2 Passing a bill of this magnitude is no small feat. Once such legislation receives approval from both houses of Congress and the President, no one has …

Are They Human Children Or Just Border Rats?, Susan M. Akram

Faculty Scholarship

No abstract provided.

How Did We Get Into This Mess?, Tamar Frankel

Faculty Scholarship

HOW DID MUTUAL FUNDS AND THEIR ADVISERS GET INTO THIS MESS? It is impossible to offer a clear answer to this question. Proving causation is generally very difficult. We can examine, however, what has changed in the past thirty years and draw our own conclusions. This Article lists a number of changes that have occurred in the past thirty years and focuses on one change in particular. These changes point to altered theories, categories, images, and ways in which we interpret and approach the law. The conceptual substitutions that have occurred offer the justifications for the evolving attitudes, behavior, and …

Filmmaking In The Precinct House And The Genre Of Documentary Film, Jessica Silbey

Faculty Scholarship

This Article explores side-by-side two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal justice principles, …

Videotaped Confessions And The Genre Of Documentary, Jessica Silbey

Faculty Scholarship

This essay begins the exploration of two contemporary and related film trends: the recent popular enthusiasm over the previously arty documentary film and the mandatory filming of custodial interrogations and confessions.

The history and criticism of documentary film, indeed contemporary movie-going, understands the documentary genre as political and social advocacy (recent examples are Michael Moore's Farenheit 9/11 and Errol Morris's Fog of War). Judges, advocates, and legislatures, however, assume that films of custodial interrogations and confessions reveal a truth and lack a distorting point of view. As this Article explains, the trend at law, although aimed at furthering venerable criminal …

Democracy's Handmaid, Robert L. Tsai

Faculty Scholarship

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, I draw from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, I present a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Counterfeit Drugs: The Good, The Bad, And The Ugly, Kevin Outterson

Faculty Scholarship

When I chose the title, Counterfeit Drugs: The Good, the Bad and the Ugly, some of my colleagues at this symposium blanched. They understood counterfeit drugs as Bad and Ugly, but resisted categorizing any counterfeit drug as Good. This article is intended to be provocative, challenging some of the conventional wisdom concerning counterfeit drugs.

We start with the fact that reports about the scope of pharmaceutical counterfeiting are remarkably anecdotal rather than empirical. As a professor once chided me, the plural of anecdote is not data. The FDA and the WHO must undertake comprehensive market surveillance to establish the true …

'God's Created Order', Gender Complementarity, And The Federal Marriage Amendment, Linda C. Mcclain

Faculty Scholarship

Does marriage, in the United States, need the protection of an amendment to the federal constitution, which would enshrine marriage as only the union of a man and a woman? In answering "yes" to this question, sponsors and supporters of the Federal Marriage Protection Amendment (FMPA), in the House of Representatives and the Senate, have made various appeals to the gender complementarity of marriage: (1) opposite-sex marriage is part of "God's created order;" (2) procreation is the purpose of marriage and has a tight nexus with optimal mother/father parenting; (3) marriage bridges the "gender divide" by properly ordering heterosexual desire …

The Mysterious Ways Of Mutual Funds: Market Timing, Tamar Frankel

Faculty Scholarship

The term market timing was little known outside the arcane world of mutual funds until state attorneys general from across the country popularized it. The term's innocuous-sounding ring assumed a more pernicious note when the mysterious ways of mutual funds became more transparent. In its pernicious sense, market timing denominates mutual fund insiders using the inscrutable structures of mutual funds to provide benefits selectively to favored participants at the expense of less favored participants.

Mutual fund shares are not like common stocks; investments made using these vehicles are unlike those made through traditional securities markets. While the peculiar features of …

The Wall And The Law: A Tale Of Two Judgements, Susan M. Akram, S. Michael Lynk

Faculty Scholarship

The seminal rulings in 2004 by the International Court of Justice and the Israeli High Court on the legality of the wall/barrier that Israel is building through the occupied West Bank and East Jerusalem provide a study in contrast. While both judgements were critical of the wall/barrier, their judicial approaches and legal conclusions were strikingly divergent, particularly given that the two courts were purporting to rely upon the same principles of international law. The judgements also elicited quite different political and diplomatic reactions, especially among the parties most involved in the Israel/Palestine conflict. This article explores the legal analysis and …

Foreword: Globe-Hopping Pharmaceuticals, Frances H. Miller

Faculty Scholarship

No abstract provided.

The Procedural Soft Law Of International Arbitration, William W. Park

Faculty Scholarship

The conference organizers set me the daunting task of exploring arbitration's “non-national instruments,” which is to say the guidelines of professional groups and non-governmental organizations related to evidence, conflicts of interest, ethics and the organization of arbitral proceedings. Frequently these procedural standards build on the lore of international dispute resolution as memorialized in articles, treatises and learned symposium papers. These guidelines represent what might be called “soft law,” in distinction to the harder norms imposed by arbitration statutes and treaties, as well as the procedural framework adopted by the parties through choice of pre-established arbitration rules.

The growth of procedural …

Consolidating Pharmaceutical Regulation Down Under: Policy Options And Practical Realities, Frances H. Miller

Faculty Scholarship

Pharmaceutical regulatory agencies struggle worldwide to maintain public trust these days. Drug safety issues proliferate,' the costs of lharmaceuticals take increasingly larger shares of most countries' health service spending, and conflicts of interest afflicting the drug approval and marketing processes capture more and more public attention. The Australian and New Zealand governments are keenly aware of these problems, and have been attempting to forge a regulatory alliance to combine their respective pharmaceutical regulatory agencies, Australia's Therapeutic Goods Administration (TGA) and New Zealand's Medicines and Medical Devices Safety Authority (Medsafe), into the pending Trans Tasman Therapeutic Products Authority (ANZTPA, or TPA). …

Estimates Of Patent Rents From Firm Market Value, James Bessen

Faculty Scholarship

The value of patent rents is an important quantity for policy analysis. However, estimates in the literature based on patent renewals might be understated. Market value regressions could provide validation, but they have not had clear theoretical foundations for estimating patent rents. I develop a simple model to make upper bound estimates of patent rents using regressions on Tobin's Q. I test this on a sample of US firms and find it robust to a variety of considerations. My estimates correspond well with estimates based on patentee behavior outside the pharmaceutical industry, but renewal estimates might be understated for pharmaceuticals.

Treaty Obligations And National Law: Emerging Conflicts In International Arbitration, William W. Park, Alexander A. Yanos

Faculty Scholarship

In determining the effect of treaties, the adage pacta sunt servanda ("agreements are to be kept") remains a foundation of international law? By contrast, when American courts consider international conventions, the principle barely rises to the rank of analytic starting point.

What Is Dilution, Anyway?, Stacey Dogan

Faculty Scholarship

Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the …

What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel

Faculty Scholarship

This Essay addresses corporate law's Default Rules, which allow corporations to waive their directors' liability for damages for breach of their fiduciary duty of care. Most large corporations have adopted such a waiver. This Essay distinguishes Private Contracts from Public Contracts. Public Contracts include legislation, referendums, and votes on specific outcomes, such as union members' votes on the contracts that their representatives agreed upon with management. This Essay shows that the courts view corporations and corporate articles as Public Contracts. In some Public Contracts gap-filling rules limit the scope of the Public Contracts to the information that the voters received …