Law Commons^™

Remedying The Immortal: The Doctrine Of Accession And Patented Human Cell Lines, Julia E. Fissore-O'Leary

Notre Dame Law Review

Importantly, though this Note employs Henrietta Lacks as the illustrative, paradigmatic case for the theory of accession it proposes, accession can be, and should be, broadly construed to apply to all like-situated patients. Part I of this Note briefly explains the timeless human-body-as-property debate. Next, Part II addresses the concept of accession—its theoretical underpinnings, definitions, and amenability to this and other lawsuits. Part III applies accession to HeLa and develops a methodology for calculating damages in this unique setting. This Note does not pretend to present a perfectly wrought formula. Instead, it offers several possibilities for determining compensation. Finally, …

Narrative Capacity, James Toomey

Elisabeth Haub School of Law Faculty Publications

The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in …

A Unified Theory Of Data, William Magnuson

Faculty Scholarship

How does the proliferation of data in our modern economy affect our legal system? Scholars that have addressed the question have nearly universally agreed that the dramatic increases in the amount of data available to companies, as well as the new uses to which that data is being put, raise fundamental problems for our regulatory structures. But just what those problems might be remains an area of deep disagreement. Some argue that the problem with data is that current uses lead to discriminatory results that harm minority groups. Some argue that the problem with data is that it impinges on …

"As Long As I'M Me": From Personhood To Personal Identity In Dementia And Decision-Making, James Toomey

Elisabeth Haub School of Law Faculty Publications

As people, especially older people, begin to develop dementia, we confront ethical questions about when and how to intervene in their increasingly compromised decision-making. The prevailing approach in philosophically-inclined bioethics to tackling this challenge has been to develop theories of “decision-making capacity” based on the same characteristics that entitle the decisions of moral persons to respect in general. This Article argues that this way of thinking about the problem has missed the point. Because the disposition of property is an identity-dependent right, what matters in dementia and decision-making is an individual’s personal identity with their prior self, not their moral …

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Indiana Law Journal

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

The False Promise Of Health Data Ownership, Jorge L. Contreras

Utah Law Faculty Scholarship

In recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for …

Court Of Appeals Of New York, Consumers Union Of United States, Inc. V. New York, Daphne Vlcek

Touro Law Review

No abstract provided.

Honest Services Fraud After Skilling., Pamela Mathy

St. Mary's Law Journal

The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …

Federal Hill Protest Targets Landlords, Donna M. Hughes Dr., Melanie Shapiro Esq

Donna M. Hughes

New Law Complicates Foreclosure Sales In Texas., Katherine A. Tapley

St. Mary's Law Journal

A new law that recently took effect has changed the way non-judicial real property foreclosure sales work in Texas. The new law, known as House Bill 655 (HB 655), relates to foreclosure sales in Texas. HB 655 amends the language of Texas Property Code section 51.0075(f) dealing with when the purchase price is due at a foreclosure sale. The amendment, however, complicates foreclosure sales in Texas. The purchase price at the foreclosure sale is no longer due immediately. Instead, if a purchaser at a foreclosure sale requests additional time to deliver the purchase price, the trustee—the person conducting the foreclosure …

Redefining Stewardship Over Body Parts , Elizabeth E. Appel Blue

Journal of Law and Health

This paper proposes one possible avenue for defining a framework to address body parts. I begin with the presumption that given the increasing use of body parts outside of our bodies, either after death or during life, society requires a framework with institutions and rules to govern our body parts. Yet there is no settled framework. Much of the controversy over differing approaches stems from whether people should be able to sell body parts. Thus, each potential framework implicitly addresses the question of monetary value. While multiple possibilities exist, the predominant models are (1) property, most often meaning ownership that …

Rules For Donations To Tissue Banks: What Next?, George J. Annas

Faculty Scholarship

Michael Crichton's Next is a fictional creation of multiple catastrophes emanating from the real-life case of John Moore, in which the California Supreme Court ruled in 1990 that Moore did not own his cells after they were removed from his body. As human tissue has become commercially useful, and as tissue banks storing and providing samples for research have flourished, the question of who owns the tissue has become more vital. Next got mixed reviews, but even many scientists, such as Michael Goldman, who reviewed the book in Nature, agree with Crichton that it is imperative that we “establish clear …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of …

Fair Followers: Expanding Access To Generic Pharmaceuticals For Low- And Medium-Income Populations, Kevin Outterson

Faculty Scholarship

U.S. trade offi cials frequently employ the rhetoric of free riding and piracy when discussing intellectual property (IP) rights for medicines (Drahos with Braithwaite 2002; Benson 2005). The gentler term free rider is applied when developed country governments (OECD) use monopsony power to negotiate price discounts on patented pharmaceuticals (Outterson 2004, 2005b; U.S. Department of Commerce 2004; PhRMA 2005). Poorer governments usually lack suffi cient market power as a purchaser to negotiate discounts for their low- and middle-income populations. In these cases, governments and patients may resort to unlicensed generic drugs and compulsory licensing. In response, U.S. trade offi cials …

Owning Persons: The Application Of Property Theory To Embryos And Fetuses, Jessica Wilen Berg

Faculty Publications

Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking.

This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, …

Tangible Or Intangible - Is That The Question - Conflict In The Texas Tax Classification System Of Computer Software Comment., Christine E. Reinhard

St. Mary's Law Journal

This Comment evaluates tax classification of computer software in Texas under recent statutory provisions and case law. The author focuses on whether computer software constitutes tangible or intangible property and whether computer software should be taxable or not. Determining property classification is not easy—the term “computer software” is difficult to define, and the multitude of different types of computer software further obscures the formation of a uniform definition. The Texas legislature’s ability to tax both tangible and intangible property makes classifying computer software as either type unnecessary. Texas can resolve the conflict in its tax classification system, wherein computer software …

Doing Justice: A Challenge For Catholic Law Schools Essay., Grace M. Walle

St. Mary's Law Journal

The numerous allegations of misconduct against high-ranking United States political figures and the associated attorneys are disheartening, but even more disconcerting is the general public’s acquiescence to these ethical deviations. The common assumption that “all lawyers are crooks” fails to outrage anyone. The fact most, if not all, recent ethical violators attended law schools and began their political careers as lawyers prompts questions of the legal education process. Understanding what justice encompasses may begin in books and the classroom, but justice in legal practice requires far more. The aspiration of “doing justice” may stem from religious belief, but this goal …

The Texas Home Equity Controversy In Context Forum - Introduction., James W. Paulsen

St. Mary's Law Journal

This Essay provides some historical and legal context for the Texas home equity debate during the 1990s. It begins with an examination of early Texas homestead law, which did not clearly prohibit home equity lending. Part II describes the genesis of the homestead exemption in Texas. Public policy surrounding the homestead law had at least three components: protection of debtors, protection of women, and the fostering of an independent spirit in Texas settlers. Part III evaluates the Texas Constitution’s 1876 ban on home equity loans and the subsequent public debate up until the 1970s. Although criticism of the prohibition on …

Widow And The Sperm: The Law Of Post-Mortem Insemination, E. Donald Shapiro, Benedene Sonnenblick

Journal of Law and Health

Just as there are moral and ethical implication in permitting the widow to use a sperm deposit for AIH, so are there moral and ethical implications in denying her this privilege. What is the rationale behind denying a widow access to that which would only be discarded? Suppose the sperm, rather than be discarded, were to be designated that of an unknown donor to be used in AID? If unmarred women have the right to procreate even using known donor sperm, what is the reason for prohibiting a woman to choose to be inseminated with the sperm of a man …

Compensation For Victims Of Crimes, Law Review Staff

Vanderbilt Law Review

The steadily increasing number of crimes in the United States and other Western countries brings about not only the destruction of property and the expenditure of money and effort to apprehend and punish the criminals, but also physical injury to thousands of innocent victims.' Although our society has established elaborate safe-guards for the rights of the accused criminal, the injured victim is left to shoulder the responsibility of paying his own medical bills and providing for his own living expenses while he is unable to work. Because of the extremely high cost of medical and hospital care, even a well …