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Racially-Tailored’ Medicine Unraveled, Sharona Hoffman Mar 2006

Racially-Tailored’ Medicine Unraveled, Sharona Hoffman

Faculty Publications

In June 2005, the FDA approved BiDil, a heart failure medication that is labeled for use only by African-Americans and thus is the first treatment of its kind. The drug likely portends a future of growing interest in "race-based" medicine. This phenomenon is emerging at the same time that scientists, in light of the Human Genome Project, are reaching an understanding that "race" has no biological meaning, and consequently, "racially-tailored" medicine is both puzzling and troubling.

This Article explores the reasons for the new focus on "racial-profiling" in medicine. It analyzes the risks and dangers of this approach, including medical ...


Preplacement Examinations And Job-Relatedness: How To Enhance Privacy And Diminish Discrimination In The Workplace, Sharona Hoffman Mar 2006

Preplacement Examinations And Job-Relatedness: How To Enhance Privacy And Diminish Discrimination In The Workplace, Sharona Hoffman

Faculty Publications

Medical testing in the workplace is raising growing concern in light of increasingly available genetic tests and what is perceived as a general assault on individual privacy in the United States. Almost seventy percent of major U.S. firms require individuals who receive job offers to undergo medical testing prior to the commencement of employment, and the law does not restrict the scope of these examinations. Thus, employers test job candidates not only for fitness for duty and use of illegal substances, but also for a variety of conditions including susceptibility to workplace hazards, breast and colon cancer, sexually transmitted ...


Responders’ Responsibility: Liability And Immunity In Public Health Emergencies, Sharona Hoffman Mar 2006

Responders’ Responsibility: Liability And Immunity In Public Health Emergencies, Sharona Hoffman

Faculty Publications

Many experts predict the advent of a public health emergency resulting from a flu pandemic or bioterrorism attack in the foreseeable future. At the same time, many health care providers express significant concern about liability arising from emergency response activities, because it is unlikely that they would be able to provide optimal care in crisis conditions. They also state that this concern will likely influence their willingness to be involved in response activities. This article addresses issues that have received little attention in the legal literature: liability and immunity in public health emergencies. The article provides a first-of-its-kind comprehensive analysis ...


Wrongful Convictions And Forensic Science: The Need To Regulate Crime Labs, Paul C. Giannelli Mar 2006

Wrongful Convictions And Forensic Science: The Need To Regulate Crime Labs, Paul C. Giannelli

Faculty Publications

DNA testing has exonerated over 200 convicts, some of whom were on death row. Studies show that a substantial number of these miscarriages of justice involved scientific fraud or junk science. This article documents the failures of crime labs and some forensic techniques, such as microscopic hair comparison and bullet lead analysis. Some cases involved incompetence and sloppy procedures, while others entailed deceit, but the extent of the derelictions - the number of episodes and the duration of some of the abuses, covering decades in several instances - demonstrates that the problems are systemic.

Paradoxically, the most scientifically sound procedure - DNA analysis ...


Joinder & Severance Of Offenses, Paul C. Giannelli Mar 2006

Joinder & Severance Of Offenses, Paul C. Giannelli

Faculty Publications

No abstract provided.


Closing Argument: Prosecution Misconduct, Paul C. Giannelli Mar 2006

Closing Argument: Prosecution Misconduct, Paul C. Giannelli

Faculty Publications

No abstract provided.


Joinder & Severance Of Defendants, Paul C. Giannelli Mar 2006

Joinder & Severance Of Defendants, Paul C. Giannelli

Faculty Publications

No abstract provided.


Taxonomy For Justifying Legal Intervention In An Imperfect World: What To Do When Parties Have Not Achieved Bargains Or Have Drafted Incomplete Contracts, Juliet P. Kostritsky Feb 2006

Taxonomy For Justifying Legal Intervention In An Imperfect World: What To Do When Parties Have Not Achieved Bargains Or Have Drafted Incomplete Contracts, Juliet P. Kostritsky

Faculty Publications

This paper addresses the fundamental methodological issue of when courts should intervene in incomplete contracts by interpreting them, filling in gaps and imposing liability on parties who have not yet reached a bargain. It addresses whether such intervention poses a threat to the parties' freedom from contract, the subject of the Wisconsin Symposium on Freedom from Contract. It uses an instrumental approach to determine the circumstances in which courts can outperform parties in improving welfare by intervention. It assesses the two dominant strands of scholarship for addressing the legal intervention question. One strand emphasizes the costs of parties achieving complete ...


Illegal Contacts And Efficient Deterrence: A Study In Modern Contract Theory, Juliet P. Kostritsky Feb 2006

Illegal Contacts And Efficient Deterrence: A Study In Modern Contract Theory, Juliet P. Kostritsky

Faculty Publications

This Article offers a unified theory that explains why courts, despite the compelling argument for deterrence, should not apply the no-effect rule of illegal contracts uniformly and why they should vary the type of relief according to the factual setting. It posits that a graduated relief structure will maximize efficient deterrence. An efficient deterrence scheme will preserve limited personal, judicial and societal resources without burdening legitimate transactions.


Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen Feb 2006

Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the ...


Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen Feb 2006

Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the ...


United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jensen Feb 2006

United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Does the constitutional requirement that the "compensation" of federal judges "not be diminished during their Continuance in office" preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitude of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held ...


The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler Feb 2006

The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler

Faculty Publications

This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court's decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld economic development takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court's ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.

Part I briefly explains the rationales of ...


Conservation Cartels: How Competition Policy Conflicts With Environmental Protection, Jonathan H. Adler Feb 2006

Conservation Cartels: How Competition Policy Conflicts With Environmental Protection, Jonathan H. Adler

Faculty Publications

The alleged purpose of antitrust law is to improve consumer welfare by proscribing actions and arrangements that reduce output and increase prices. Conservation seeks to improve human welfare by maximizing the long-term productive use of natural resources, a goal that often requires limiting consumption to sustainable levels. While conservation measures might increase prices in the short run, they enhance consumer welfare by increasing long-term production and ensuring the availability of valued resources over time. That is true whether the restrictions are imposed by a private conservation cartel or a government agency. Insofar as antitrust law fails to take this into ...


Free And Green: A New Approach To Environmental Protection, Jonathan H. Adler Feb 2006

Free And Green: A New Approach To Environmental Protection, Jonathan H. Adler

Faculty Publications

Most Americans consider themselves environmentalists, yet most experts are dissatisfied with existing environmental regulations, which are both inefficient and inequitable. Worse, many don't serve environmental goals. This article outlines an alternative approach to environmental policy based on market institutions and property rights rather than central-planning and bureaucratic control. The aim is both to improve environmental protection and lessen the costs ? Economic and otherwise ? Of achieving environmental goals. It seeks to ensure that Americans' environmental values are advanced without sacrificing the individual liberties the American government was created to protect.

The problem with current regulatory approaches is not merely that ...


The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, B. Jessie Hill Feb 2006

The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, B. Jessie Hill

Faculty Publications

The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose ¿partial-birth¿ abortion and the right to use medical marijuana, the Supreme Court reached radically different results, based on radically different reasoning.

More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching ...


Understanding Waiver, Jessica Wilen Berg Feb 2006

Understanding Waiver, Jessica Wilen Berg

Faculty Publications

Waiver plays a role in numerous areas of law, yet no one has attempted to provide a unifying theory of waiver, explaining why some rights cannot be waived and why courts and legislatures have set different standards for the validity of waivers in different circumstances. This article proposes that maximization of autonomy functions as an underlying goal of our legal system generally, and thus the concept of autonomy provides a basis for understanding waivers. It analyzes autonomy in some detail and offers an evaluative framework that functions both descriptively and normatively across different legal areas. There are two senses of ...


Ethics And E-Medicine, Jessica Wilen Berg Feb 2006

Ethics And E-Medicine, Jessica Wilen Berg

Faculty Publications

The computer revolution has had enormous effect on all aspects of the practice of medicine from scheduling and billing, to treatments, to research and beyond. This article focuses on the impact of new internet technologies on relationships between physicians and patients. These forms e-medicine may be utilized outside the confines of a pre-existing relationship, and thus have the potential to replace rather than merely augment traditional medical care. They change the setting and nature of the physician-patient relationship and thereby alter how medicine is practiced.

Initial discussions of this issue implied that e-medicine was problematic because it failed to create ...


Constructing Competence: Formulating Standards Of Legal Competence To Make Medical Decisions, Jessica Wilen Berg Feb 2006

Constructing Competence: Formulating Standards Of Legal Competence To Make Medical Decisions, Jessica Wilen Berg

Faculty Publications

A young woman twenty-six weeks pregnant and dying from cancer lies heavily sedated and attached to a respirator. Is she competent to determine what life-prolonging measures should be taken, or to consent to an emergency cesarean section that may save her fetus but will probably shorten her life? A quadriplegic young man wishes to end his life and requests a court order granting immunity for the medical staff who will unhook his respirator and administer sedatives. Is he competent to choose to die? A person's competence will have implications for whether he or she is allowed to decide what ...


The Case For A Flat-Earth Law School, Erik M. Jensen Feb 2006

The Case For A Flat-Earth Law School, Erik M. Jensen

Faculty Publications

This essay suggests - usually politely - that the American legal academy has been overdoing its push for globalization, and, as a result, education in the basics has suffered. That's a pity because law school graduates need to know the basics to be successful not only in Smalltown USA, but also on a world stage.


Wheir’S The Beef?: Buffalo Law And Taxation, Erik M. Jensen Feb 2006

Wheir’S The Beef?: Buffalo Law And Taxation, Erik M. Jensen

Faculty Publications

The intersection of buffalo law and taxation hasn't been a busy one, but accidents still happen: not everyone understands that buffalo have the right of way. This article critically analyzes the recent Tax Court summary opinion in Wheir v. Commissioner, which involved a bodybuilder who sought to deduct the cost of an incredible amount of buffalo meat. Along the way, the article brings buffalo law learning up-to-date; revisits some classic, nineteenth-century buffalo law cases; and, most important, considers whether there are important differences between the American bison and American beef cattle - differences that might have relevance to American tax ...


Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen Feb 2006

Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the ...


Interpreting The Sixteenth Amendment (By Way Of The Direct-Tax Clauses), Erik M. Jensen Feb 2006

Interpreting The Sixteenth Amendment (By Way Of The Direct-Tax Clauses), Erik M. Jensen

Faculty Publications

The Sixteenth Amendment and the direct-tax clauses have become subjects of interest in the legal academy and, as proposals for new forms of national taxation emerge on a seemingly daily basis, they could become subjects of more general interest as well. Under the direct-tax clauses, a direct tax must be apportioned among the states on the basis of population, making such a tax difficult, although not impossible, to implement. Following the Supreme Court decisions in the 1895 Income Tax Cases, which held that an 1894 income tax was a direct tax that had not been properly apportioned, the Sixteenth Amendment ...


Death By Bluebook, Erik M. Jensen Feb 2006

Death By Bluebook, Erik M. Jensen

Faculty Publications

This review considers a novel about life (and death) on the University of Chicago Law Review, where editors and associates seem to do little but have sex, connive to get ahead, have sex, kill (with Gunther's con law casebook, no less), and have sex. The reviewer, who didn't attend the U of C law school, believes it all.


Taxation Of Beards, Erik M. Jensen Feb 2006

Taxation Of Beards, Erik M. Jensen

Faculty Publications

This article makes a compelling case that the United States could learn from the imaginative tax policy-maker Peter the Great and institute a tax on beards. Such a tax could raise a little revenue, decrease scruffiness, and provide a new subject for cutting-edge law review notes.

Note: This a description of the paper and not the actual abstract.


Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen Feb 2006

Chickasaw Nation: Interpreting A Broken Statute, Erik M. Jensen

Faculty Publications

This report discusses the Supreme Court's 2001 decision in Chickasaw Nation v. United States, in which the Supreme Court interpreted a provision of the Indian Gaming Regulatory Act that contained contradictory phrases - one suggesting that Indian tribes were exempt from some occupational and excise taxes and one suggesting the contrary. The statute on its face made no sense, and the legislative history was of little help in resolving the ambiguity. Although the statute was clearly broken, the Court concluded that no ambiguity existed and that Congress did not intend to exempt tribes from those various wagering taxes. The author ...


Law Reviews And Academic Debate, Erik M. Jensen Feb 2006

Law Reviews And Academic Debate, Erik M. Jensen

Faculty Publications

These essays were part of a mini-symposium, “Of Correspondence and Commentary,” published by the Connecticut Law Review. At the time, a number of prominent law reviews had begun to publish “correspondence,” shorter pieces generally commenting on work published in the reviews. Whatever they were called, however, these pieces looked an awful lot like articles, complete with footnotes, titles with colons, and other law-review-type stuff. The author used the creation of correspondence sections to ruminate on the nature of legal scholarship, as published in student-edited law reviews, and in particular to wonder whether authors were using correspondence sections as backdoor ways ...


United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jesnen Feb 2006

United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jesnen

Faculty Publications

Does the constitutional requirement that the "compensation" of federal judges "not be diminished during their Continuance in office" preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitutde of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held ...


Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen Feb 2006

Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen

Faculty Publications

Does the constitutional requirement that the "compensation" of federal judges "not be diminished during their Continuance in office" preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitutde of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held ...


The Taxing Power, The Sixteenth Amendment, And The Meaning Of ‘Incomes,’, Erik M. Jensen Feb 2006

The Taxing Power, The Sixteenth Amendment, And The Meaning Of ‘Incomes,’, Erik M. Jensen

Faculty Publications

This article examines the debates leading to the enactment of the 1894 income tax, which the Supreme Court struck down in 1895, and the Sixteenth Amendment, ratified in 1913, and concludes that an income tax and a tax on consumption were understood to be fundamentally different types of taxes. The author argues that the term “taxes on incomes” in the Sixteenth Amendment should be interpreted with that distinction in mind. The Amendment was intended to make a “tax on incomes,” and only a tax on incomes, possible without the apportionment that would otherwise be required for a direct tax. For ...