Digital Commons Network^™

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

Publications

For centuries, the fair use doctrine has been the main--if not the exclusive--bastion of user rights. Originating in the English courts of equity, the doctrine permitted users, under appropriate circumstances, to employ copyrighted content without the rightsholder's consent. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of technological protection measures even for fair use purposes, has diminished the ability of fair use to counterbalance a copyright …

The Relevance Of Results Generated By Human Indexing And Computer Algorithms: A Study Of West's Headnotes And Key Numbers And Lexisnexis's Headnotes And Topics, Susan Nevelow Mart

Publications

This article begins the investigation into the different ways results are generated in West's "Custom Digest" and in LexisNexis's "Search by Topic or Headnote" and by KeyCite and Shepard's. The author took ten pairs of matching headnotes from important federal and California cases and reviewed the results sets generated by each classification and citator system for relevance. The differences in the results sets for classification systems and for citator systems raise interesting issues about the efficiency and comprehensiveness of any one system, and the need to adjust research strategies accordingly

Rethinking Tax Priorities: Marriage Neutrality, Children, And Contemporary Families, James M. Puckett

Faculty Scholarship

Tax scholarship has long struggled with whether married taxpayers should be taxed differently from unmarried taxpayers. Currently, married taxpayers are subject to different tax rates than unmarried taxpayers, and may file a joint tax return. A married couple may pay a higher or lower amount of tax than an unmarried couple with the same total income, and a single person generally pays more tax on a given income than a married couple with a single earner with the same income. These outcomes are difficult to reconcile with a commitment to income tax progressivity, which in theory requires that higher incomes …

Methademic: Drug Panic In An Age Of Ambivalence, Deborah Ahrens

Faculty Articles

The story of criminal sanctions in modern America is a familiar-and depressing narrative. According to the narrative, we live in an era where the dynamics of popular politics, the practices of the media, and the (often racialized) anxieties of modern life combine to create a one-way ratchet, in which we identify perceived new threats to public order and respond unthinkingly with harsh new criminal sanctions. On the surface, the wave of concern over methamphetamine that swept the nation in the middle part of this decade followed this script, as a media panic led to substantial popular concern and significant new …

Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff

Faculty Articles

In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …

Rethinking Tax Priorities: Marriage Neutrality, Children, And Contemporary Families, James Puckett

Faculty Articles

Tax scholarship has long struggled with whether married taxpayers should be taxed differently from unmarried taxpayers. Currently, married taxpayers are subject to different tax rates than unmarried taxpayers, and may file a joint tax return. A married couple may pay a higher or lower amount of tax than an unmarried couple with the same total income, and a single person generally pays more tax on a given income than a married couple with a single earner with the same income. These outcomes are difficult to reconcile with a commitment to income tax progressivity, which in theory requires that higher incomes …

The State Of Utah V. Apotex Corporation; Baxter Healthcare Corporation; Boehringeringelheim Corporation; Mallinckrodt Inc.; Csl Behring; Forest Laboratories, Inc.; Morton Grove Pharmaceuticals, Inc.; Mutual Pharmaceutical Company, Inc.; Novartis Pharmaceuticals Corporation; Otsuka America, Inc.; Pfizer, Inc.; Qualitest Pharmaceuticals, Inc.; Schering-Plough Corporation; Schwarz Pharma Usa Holdings, Inc; Taro Pharmaceuticals Usa, Inc.; Upsher-Smith, Inc.; And Wyeth, Inc., : Brief Of Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

No abstract provided.

Preserving Human Potential As Freedom: A Framework For Regulating Epigenetic Harms, Fazal Khan

Scholarly Works

Epigenetics is a rapidly evolving scientific field of inquiry examining how a wide range of environmental, social, and nutritional exposures can dramatically control how genes are expressed without changing the underlying DNA. Research has demonstrated that epigenetics plays a large role in human development and in disease causation. In a sense, epigenetics blurs the distinction between “nature” and “nurture” as experiences (nurture) become a part of intrinsic biology (nature). Remarkably, some epigenetic modifications are durable across generations, meaning that exposures from our grandparents’ generation might affect our health now, even if we have not experienced the same exposures. In the …

Annotated Legal Bibliography On Gender

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

In The Manner Prescribed By The State: Potential Challenges To State-Enforced Hospital Limitations On Childbirth Options, Krista Stone-Manista

Cardozo Journal of Equal Rights & Social Justice

The article argues that hospital bans on vaginal births after cesarean (VBAC) infringe upon women's legal and constitutional rights, violating principles of autonomy and equality. These bans are not only medically unnecessary but also undermine international human rights standards that protect women's decisional autonomy in healthcare. The analysis posits that such bans discriminate against women and set a dangerous precedent for state and medical control over women's bodies during pregnancy.

Reproductive Health As A Human Right, Lance Gable

Case Western Reserve Law Review

No abstract provided.

From The Bottle To The Grave: Realizing A Human Right To Breastfeeding Through Global Health Policy, Benjamin Mason Meier, Miriam Labbok

Case Western Reserve Law Review

No abstract provided.

Balancing Consumer Privacy With Behavioral Targeting, Dustin D. Berger

Santa Clara High Technology Law Journal

No abstract provided.

It’S Not A Small World After All: Regulating Obesity Globally, Eloisa Rodriguez-Dod

Faculty Publications

The rate of obesity and overweight among the world population has increased dramatically over the past several years in both adults and children. Childhood obesity is a critical health care concern. There have been well-publicized efforts to regulate children‘s obesity both in the U.S. and abroad through such measures as mandated nutritional school lunch programs.

This article focuses, however, on a less examined area of regulation—the recent worldwide efforts to curb obesity among adults. The regulations discussed in this article include measures proposed or adopted by either administrative agencies or legislative bodies, whether on a local or national level. The …

C.S.I. Bulls#!T: The National Academy Of Sciences, Melendedez-Diaz V. Massachusetts, And Future Challenges To Forensic Science And Forensic Evidence,, Joelle A. Moreno

Faculty Publications

No abstract provided.

Food Fish, Commercial Fish, And Fish To Support A Moderate Livelihood: Characterizing Aboriginal And Treaty Rights To Canadian Fisheries, Douglas C. Harris, Peter Millerd

All Faculty Publications

The Aboriginal peoples of Canada stand in a different legal relationship to the fisheries than non-Aboriginal Canadians. They do so by virtue of a long history with the fisheries that precedes non-Aboriginal settlement in North America, and because of the constitutional entrenchment of Aboriginal and treaty rights in Canadian law. This article describes the characterizations of Aboriginal and treaty rights to fish in Canadian law and discusses what it means for rights characterized in terms of food fishing, commercial fishing, and fishing to support a moderate livelihood, to receive constitutional protection. The article then problematizes these characterizations and suggests that …

The President’S Global Health Initiative, Lawrence O. Gostin, Emily A. Mok

Georgetown Law Faculty Publications and Other Works

The U.S. Global Health Initiative (GHI) represents the Obama administration’s new strategy for international development assistance in health. With a pledge of $63 billion over six years, GHI aims to fund PEPFAR and a set of broader global health issues (e.g., maternal and child health, nutrition, and neglected tropical diseases). GHI is also being framed as “smart power” whereby health would serve as a critical tool for U.S. foreign policy.

However, as the U.S. enters a period of severe budgetary restraint and as domestic crises rise to the fore, the promise of global health reform could become illusory. The lack …

The Joint Action And Learning Initiative On National And Global Responsibilities For Health, Lawrence O. Gostin, Gorik Ooms, Mark Heywood, Just Haffeld, Sigrun Møgedal, John-Arne Røttingen, Eric A. Friedman, Harald Siem

Georgetown Law Faculty Publications and Other Works

A population’s health and wellbeing is primarily a national responsibility. Every state owes all of its inhabitants a comprehensive package of essential health goods and services under its obligations to respect, protect, and fulfill the human right to health. Yet health is also a global responsibility. Every state has a duty to ensure a safe and healthy world, with particular attention to the needs of the world’s poorest people. Improving health and reducing unconscionable health inequalities is both an international obligation under the human right to health and a matter of global social justice.

The mutual obligations of states to …

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

Redressing The Unconscionable Health Gap: A Global Plan For Justice, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Consider two children—one born in sub-Saharan Africa and the other in the United States. The African child is twenty-five times more likely to die in the first five years of life; if she lives to child-bearing age, she is a two hundred times more likely to die in labor; and overall, she will die thirty years earlier than the American child. The international community is deeply resistant to taking bold remedial action—more concerned with their geostrategic interests than the health of the poor. The scale of foreign aid is both insufficient and unsustainable and fails to address the key determinants …

The Unconscionable Health Gap: A Global Plan For Justice, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

International norms recognize the special value of health. The WHO Constitution states that “the enjoyment of the highest attainable standard of health” is a fundamental human right. The right to health, moreover, is a treaty obligation with clear obligations. Despite robust international norms, unconscionable health disparities exist between the world’s rich and poor, causing enormous suffering. The WHO urges “closing the health gap in a generation” through action on the social determinants of health. As the Marmot Commission observed: “the social conditions in which people are born, live, and work are the single most important determinant of good or ill …

Restoring Health To Health Reform, Lawrence O. Gostin, Peter D. Jacobson

Georgetown Law Faculty Publications and Other Works

In this article, we discuss the public health provisions of the Patient Protection and Affordable Care Act (PPACA--P.L. 111-148). We first set forth a framework to identify the key reforms that are needed for a robust public health system. These include workforce and infrastructure investments. We then assess the PPACA against these criteria. We conclude that although the act would make significant investment in public health (especially in wellness and prevention programs), it does little to improve the existing structural deficiencies that the public health system must overcome if it is to be effective in improving the population’s health.

The Effects Of Brazilian Agricultural Property Policies And International Pressures On The Soybean Industry: Incentives For Amazon Deforestation And How It May Be Reduced, Tyler E. Hazen

San Diego Journal of Climate & Energy Law

This Article begins in Part II with an overview of the Amazonian environment and the rise of soybeans as a lucrative export product. Part III discusses how Brazilian property law and land use culture has facilitated transformation of land for cultivation and ultimately, deforestation. Part IV discusses international reaction to Brazil’s sovereignty over the Amazon, including European import practices such as protectionism, desire for hormone-free products, as well as market incentives for soy raised on land that was not deforested. Finally, Part V offers solutions for working within the current system, aggressively supporting the policies against deforestation while respecting the …

A Missed Opportunity: Health Care Reform, Rhetoric, Ethics And Economics At The End Of Life, Joshua E. Perry

MC Law Review

Symposium

High Crimes, Not Misdemeanors: Deterring The Production Of Unsafe Food, Rena I. Steinzor

Faculty Scholarship

In the fall of 2008, Minnesota public health officials became alarmed by an unusually high number of illnesses and deaths caused by salmonella poisoning. Federal and state regulators and the news media eventually traced the outbreak back to products supplied by the Peanut Corporation of America (PCA). Employees shipped batches that tested positive for salmonella from a plant with a leaking roof, mold growing on ceilings and walls, rodent infestation, filthy processing receptacles, and feathers and feces in the air filtration system. Under an agreement with the Food and Drug Administration (FDA), Georgia state inspectors visited the PCA plant nine …

Shifting The Burden: Proving Infringement And Damages In Patent Cases Involving Inconsistent Manufacturing Techniques, Julie Zink

School of Law Faculty Publications

No abstract provided.

Litigation, Integration, And Transformation: Using Medcaid To Address Racial Inequities In Health Care, Ruqaiijah A. Yearby

All Faculty Scholarship

Instances of racial discrimination in health care continue despite the enactment of civil rights laws, such as Title VI of the Civil Rights Act of 1964 *329 (Title VI). Title VI prohibited racial discrimination by health care entities receiving government funding such as Medicaid payments. The federal government focused its initial efforts on hospitals. Because hospitals relied on federal funding, the federal government was able to force hospitals to integrate without much resistance from the hospital industry. However, since this accomplishment the government has relied too heavily on assurances of compliance from other health care entities, such as nursing homes, …

African Americans Can't Win, Break Even, Or Get Out Of The System: The Persistence Of “Unequal Treatment ” In Nursing Home Care, Ruqaiijah A. Yearby

All Faculty Scholarship

Empirical data show that racial disparities in the quality of care provided by nursing homes are a common occurrence, not isolated to Illinois. Nine years after the publication of the groundbreaking Institute of Medicine Study (“IOM study”) Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare, which acknowledged continued racial disparities in health care and provided suggestions for the elimination of these disparities, racial disparities still remain. One chief example of the continuation of racial disparities in health care is in the provision of nursing home care.

Decades of empirical research studies have shown that racial disparities in accessing quality …

Litigation, Integration, And Transformation: Using Medicaid To Address Racial Inequities In Health Care, Ruqaiijah Yearby

All Faculty Scholarship

Using a public health policy perspective, this article examines the persistence of racial inequities in nursing homes and prescribes a solution to address these inequities. I use empirical data to prove the persistence of racial inequities in health care, analyze the government policies that allow racial inequities to continue, and provide a solution of regulatory integration. Specifically, I propose that civil rights enforcement be integrated with the nursing home enforcement system, which has been aggressively enforced and monitored. There are many strategies that may lead to the adoption of this system. One such strategy is using the Medicaid Act to …

A Prisoner's Constitutional Right To Medical Information: Doctrinally Flawed And A Threat To State Informed Consent Law, Robert Gatter

All Faculty Scholarship

White v. Napoleon and its progeny recognize a substantive due process right to receive the disclosure of medical treatment information. While each case involves a prisoner receiving treatment while in custody, the constitutional right described in those cases is not limited to prisoners. Instead, the right is described as belonging to all individuals. Consequently, this line of cases is poised to interfere with the disclosure standards that operate in state informed consent law in the many instances where state action exists. This Article argues that the substantive due process right recognized in White should be overturned. The right is based …