Law Commons^™

Federal Biotechnology Policy: The Perils Of Progress And The Risks Of Uncertainty, Al Gore

University of Michigan Journal of Law Reform

Americans have a schizophrenic view of science and technology. Some of our greatest heroes have been technological pioneers- from the Wright brothers to Lindbergh to Chuck Yeager. Until recently, we expressed unmitigated adoration for the scientists and engineers who put man in space. Yet at the same time, many Americans are generally uneasy about the triumph of technology in their own lives. One does not have to be a Luddite to rail against computers every now and then.

In deciding how to allocate precious public resources in an era of limits, legislators must take public perceptions of science very seriously. …

Introduction: Legislative, Administrative, And Judicial Nonscience, Samuel D. Estep

University of Michigan Journal of Law Reform

This symposium deals with the legal issues, or rather some of them, that are created by scientific research. Anyone remotely interested in scientific developments should be aware that even the existence of "new" scientific "facts," let alone the application of such discoveries to everyday activities, gives rise to a host of human value judgments that should be faced and resolved by society. Although these problems are often left in purgatory forever, it is the legal system, broadly defined, that attempts to resolve the conflict of interests (or the balancing of values) when a decision is made. Making this type of …

Scientific Responsibility And The Law, Harold P. Green

University of Michigan Journal of Law Reform

Because public policy is implicated by scientific misconduct, the legal profession should be interested in overcoming this problem. This Article studies the scientific misconduct problem and provides a personal view of the legal dilemmas that confront those who report misconduct. Part I describes how the scientific community currently deals with alleged fraud. Scientists primarily rely on the peer review system and toothless guidelines. Part II illustrates the problems in the present system through a case study of an allegation of misconduct. The author represented a man who reported scientific misconduct; the National Institutes of Health (NIH) investigation took five and …

Earmarked Appropriations: The Debate Over The Method Of Federal Funding, Donald N. Langenberg

University of Michigan Journal of Law Reform

The report that follows is the product of the Committee's deliberations.

The associations which sponsored the Committee and to which its report was addressed are at this date still considering the recommendations of the report. The Association of American Universities has adopted a resolution reaffirming its position supporting the use of scientific merit for research funding decisions and opposing earmarked funding, and agreeing to a moratorium on earmarked funding while the Association supports the creation of federally-funded research facilities programs. The American Association of State Colleges and Universities and the National Association of Independent Colleges and Universities have adopted or …

On The Human Body As Property: The Meaning Of Embodiment, Markets, And The Meaning Of Strangers, Thomas H. Murray

University of Michigan Journal of Law Reform

For as long as I can recall, newspapers have published brief items in which someone has calculated what the human body is "worth" on the open market. The value of the body-as reduced to its chemical components-was never more than a few dollars. A more accurate accounting, though, would include the market value of transplantable organs and tissues, as well as the potential bonanza to be had should a cell line cultured from that body prove valuable to the biotechnology industry. The bottom line could be anywhere from tens of thousands to perhaps millions of dollars.

Both moral and legal …

A Proposal To Cap Tort Liability: Avoiding The Pitfalls Of Heightened Rationality, Richard S. Kuhl

University of Michigan Journal of Law Reform

This Note sets forth a model statute that limits high damage awards, yet will withstand the rigors of judicial scrutiny. After presenting a brief background of the medical malpractice crisis in Part I, Part II outlines the standards of equal protection review that the courts are presently using. The Note then focuses on the constitutional challenges to caps on medical malpractice liability in Part III. Part IV discusses the values and interests that were found to be dispositive in the courts' decisions. Finally, after analyzing the criteria that must be met to ensure that a legislative limitation will survive judicial …

The New World Of Patents Created By The Court Of Appeals For The Federal Circuit, Martin J. Adelman

University of Michigan Journal of Law Reform

The purpose of this Article is to outline the creation of this new circuit and to analyze its position on several substantive issues. Part I discusses the origin and power of the Federal Circuit. Part II analyzes the court's recent decisions on the issues of nonobviousness, infringement, inequitable conduct, patent misuse, and jury trials. This Article concludes that the Federal Circuit has in general performed well, but there are areas of patent law that must be refined for the court to further its intended goals.

Federal Regulation Of Agricultural Biotechnologies, Thomas O. Mcgarity

University of Michigan Journal of Law Reform

Part I of this Article describes some of the risks and benefits of newly emerging agricultural biotechnologies. After discussing, in Part II, the role of federal agencies in regulating agricultural biotechnologies, Part III of the Article proposes elements for an adequate regulatory regime. Part IV then measures the existing legal authorities, as implemented by the USDA and the EPA, against the ideal elements. Part V examines the willingness of these agencies to regulate. Finally, Part VI suggests changes that can be made in the current regulatory regime to bring about more effective regulation and to enhance public trust in regulatory …

A Proposal To View Patent Claim Nonobviousness From The Policy Perspective Of Federal Rule Of Civil Procedure 52(A), Bradley G. Lane

University of Michigan Journal of Law Reform

This Note analyzes the scope of appellate review that should be accorded to a trial judge's determination of nonobviousness. Part I details the condition of nonobviousness and how it has evolved into the principal obstacle to patentability. Part II analyzes the Supreme Court and appellate precedents on the scope of review on this issue. Part III evaluates the policy underpinnings of Rule 52(a) and applies a two-pronged analysis to the nonobviousness requirement to determine whether the clearly erroneous standard of review is appropriate. This Note concludes that the treatment of the nonobviousness determination as a question of law cannot be …

Cable Television Rights Of Way: Technology Expands The Concept Of Public Forum, Lawrence E. Spong

University of Michigan Journal of Law Reform

This Note argues that the public forum analysis is the proper standard for evaluating a cable television company's claim of access to public rights of way. Part I discusses the constitutional basis for this standard. Part II examines the ideological justifications for the public forum doctrine and argues that public rights of way are public forums for cable television purposes. In addition, it explains the application of the public forum doctrine to cable access questions and the doctrine's advantages over other standards.

Medical Maloccurrence Insurance: A First Party No-Fault Insurance Proposal For Resolving The Medical Malpractice Insurance Controversy, Larry M. Pollack

University of Michigan Journal of Law Reform

Part I of this Note examines the broad, underlying themes of tort theory and argues that, in general, the tort system's primary responsibility should be compensation, rather than deterrence of risk taking. In so far as the production of goods and services causes injury, such losses should be shared and spread as widely and proportionately as possible. Part II discusses the history and nature of the medical malpractice insurance crisis. Part III evaluates the numerous systemic solutions suggested by various commentators. Finally, Part IV proposes a new solution: first party, no-fault medical maloccurrence insurance (MMI).

The Civil Jury--An Endangered Species, John Feikens

University of Michigan Journal of Law Reform

George Bernard Shaw, the Irish dramatist and arch gadfly, once said, "The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man. "

With this tantalizing opener, let me say that I will attempt to point out to you my deep concern about the gradual elimination of jury trials in civil cases in our country.

Affordable Housing For The 1990'S, Harold A. Mcdougall

University of Michigan Journal of Law Reform

This Article examines the history of national housing policy and the factors that will influence its future. Part I discusses the role of capital costs in influencing housing policy. Part II summarizes the changes that have occurred in housing policy in the last fifty years. Part III studies how local- and state-level institutions have reacted to these changes. Finally, Part IV predicts the future of national housing policy, focusing particularly on local efforts.

Preserving Purchase Money Security Interests And Allocating Payments, Lynda Kay Chandler

University of Michigan Journal of Law Reform

This Note explores the rationale underlying the courts' conflicting decisions in light of the purposes of the UCC. It concludes that the language of the UCC and its goals of uniformity and simplification require that a PMSI should not be entirely destroyed because a creditor also has a security interest in items the debtor acquired after the purchase money transaction or because a creditor extends additional credit. The best solution is to permit the creditor to retain a PMSI, to the extent of the purchase money loan, in those goods that the creditor's loan helped to purchase.

Part I is …

Psychiatric Assistance For Indigent Defendants Pleading Insanity: The Michigan Experience, Paul Zisla

University of Michigan Journal of Law Reform

The federal government and many states already provide psychiatric assistance to indigent defendants pleading insanity. Michigan's statutory scheme for delivering this service presents an opportunity to evaluate an approach that generally favors defendant interests in areas left unresolved by Ake. This Note undertakes that evaluation. Part I summarizes the Ake decision, key problem areas, and the research methodology. Part II describes the Michigan statutory system. Part III evaluates that system using data from interviews with legal and psychiatric practitioners and considers the consequences of Michigan's approach to the issues posed by Ake. The evaluation shows that Michigan's system …

Condominium Conversion Of Residential Rental Units: A Proposal For State Regulation And A Model Act, Bernard V, Keenan

University of Michigan Journal of Law Reform

This Article has several objectives. Part I provides a foundation for discussion by briefly outlining the relationship between the recent history of the rental housing market and those factors prompting the conversion of apartments to condominium status. With this background information, the relevance of conversion legislation is more readily grasped. Part II seeks to establish that state government is the appropriate governmental entity to formulate legislation intended to protect individuals affected by the conversion of rental units. Federal legislation has addressed this specific issue in the relatively unknown Condominium and Cooperative Conversion Protection and Abuse Relief Act of 1980. In …

Reckless Endangerment Of An Employee: A Proposal In The Wake Of Film Recovery Systems To Make The Boss Responsible For His Crimes, Anne D. Samuels

University of Michigan Journal of Law Reform

This Note argues that the traditional regulatory, civil, and criminal mechanisms are both ineffective and inappropriate to deter or punish corporate decisionmakers for decisions that pose risks to the safety or health of employees in the workplace. The Note proposes a new criminal offense to prevent and punish culpable corporate decisionmaking that results in employee deaths or injuries. Part I explains the novel application of the traditional murder offense in Film Recovery Systems and demonstrates that the case fails to lay the foundation for a standardized response to employee endangerment. Part II analyzes the traditional responses of the regulatory and …

"In Stark Contravention Of Its Purpose": Federal Communications Commission Enforcement And Repeal Of The Fairness Doctrine, Michael J. Bolton

University of Michigan Journal of Law Reform

This Note analyzes current FCC policy to determine whether the agency violated its statutory purpose and acted unlawfully by restricting and later repealing the fairness doctrine. Because the Commission's attack on the doctrine has been based, in part, on conclusions drawn from the doctrine's history, Part I examines prior FCC enforcement of the fairness doctrine. Part II views the Commission's contemporary enforcement and repeal of the doctrine. Finally, Part III assesses Commission action in light of its legislative mandate and administrative law standards of judicial review to conclude that the FCC both violated its administrative responsibilities by deemphasizing enforcement of …

Nonmajority Bargaining Orders: The Only Effective Remedy For Pervasive Employer Unfair Labor Practices During Union Organizing Campaigns, David S. Shillman

University of Michigan Journal of Law Reform

Current Board policy forbids issuing a bargaining order in this situation, where there is no objective evidence of majority support for a union, even though the bargaining ·order may be the only effective remedy for extreme employer unfair labor practices. The Board's refusal to issue nonmajority bargaining orders (NMBOs), grounded in its fear of imposing a union on unwilling employees, has left it impotent to remedy the most severe employer unfair labor practices. This Note examines arguments for and against the Board's use of NMBOs and concludes that NMBOs are within the scope of the Board's remedial powers and should …

Denying The Crime And Pleading Entrapment: Putting The Federal Law In Order, Richard C. Insalaco, Peter G. Fitzgerald

University of Michigan Journal of Law Reform

The federal law of procedure in entrapment cases is in profound disarray. Despite four attempts over the past fifty years to clarify the law of pleadings in entrapment cases, the Supreme Court has yet to do so successfully. This Note focuses on these attempts, and analyzes the issue of whether to permit a defendant to plead entrapment while simultaneously denying the crime charged.

Part I reviews the historical development of the entrapment defense, the disagreement among the federal circuits with regard to alternative inconsistent defenses, and the arguments commentators have made for and against allowing alternative inconsistent defenses in entrapment …

Child Sexual Abuse Cases: Reestablishing The Balance Within The Adversary System, Mary Christine Hutton

University of Michigan Journal of Law Reform

This Article begins with an overview of the adversary process and how it has changed in recent years to respond to the needs of children. The Article highlights two of the goals of the adversary process-(!) testing and probing of two sides to a story, and (2) refraining from a decision until the complete story is told-to examine how they can be retained in spite of these changes. Part II pinpoints the assignment of multiple or poorly-defined roles to the child sexual abuse professionals as one of the potential impediments to preserving the goals of the adversarial system. The performance …

Representation Of Children In Child Abuse And Neglect Cases: An Empirical Look At What Constitutes Effective Representation, Donald N. Duquette, Sarah H. Ramsey

University of Michigan Journal of Law Reform

This Article describes the purposes and design of our empirical study and analyzes the study's findings. Part I presents a case study of the representation of a child by a volunteer in a way that exhibits the role definition and training of the demonstration groups. Parts II and III discuss who should represent children and how those child advocates should be trained. Part IV discusses the design of the study. Part V presents an analysis of the study's findings. Finally, Part VI considers the policy implications of the study and concludes that the demonstration groups improved the quality of representation …

Limiting Directors' Duty Of Care Liability: An Analysis Of Delaware's Charter Amendment Approach, Craig W. Hammond

University of Michigan Journal of Law Reform

This Note explores the corporate law principles guiding the amendment of section 102(b)(7) and considers what effects this statute will have on the investor-director relationship. The Note focuses on whether this reform measure excessively protects directors at the expense of shareholders.

Part I analyzes the neoclassical economic view of the contractual relationship between stockholders and management that serves as the theoretical justification of section 102(b)(7). Part II proposes a modification of the Delaware statute that would provide for periodic shareholder review of charter amendments limiting liability.

Mediation In Debtor/Creditor Relationships, Edward A. Morse

University of Michigan Journal of Law Reform

Two states that have substantial interests in agricultural debtor/creditor relationships have attempted to limit the social and economic costs of prematurely terminating the debtor/creditor relationship. Iowa and Minnesota have adopted a statutory requirement that the creditor offer to submit to mediation prior to taking any debt collection action against an agricultural borrower. This Note argues that requiring creditors to offer mediation as a statutory prerequisite to debt collection is an effective means of reducing the social and economic costs of the premature termination of a debtor/creditor relationship in business contexts. Part I examines the conceptual foundations of the mediation process …

Population Changes And Constitutional Amendments: Federalism Versus Democracy, Peter Suber

University of Michigan Journal of Law Reform

To amend the federal Constitution, we need the assent of two-thirds of each house of Congress and three-fourths of the states. This Article focuses on the three-fourths requirement for the states. This threshold is particularly high, and it suggests that constitutional amendment is very difficult. In fact, amendment is difficult in different degrees for different constituencies, depending not on their numbers but on where they live.