Digital Commons Network^™

The Irrational Supreme Court, Michael I. Meyerson

All Faculty Scholarship

Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting …

A Primer On The Law And Ethics Of Treatment, Research, And Public Policy In The Context Of Severe Traumatic Brain Injury, Stacey A. Tovino

Faculty Articles

No abstract provided.

A Legal Framework For Preventing Cardiovascular Diseases, Wendy Collins Perdue

Law Faculty Publications

Cardiovascular diseases are major contributors to death, disability, disparities, and reduced quality of life in the United States. Successful prevention and control of these diseases requires a comprehensive approach applied across multiple public health settings and in all life stages. Individual lifestyle and behavior change, as well as the broader social, environmental, and policy changes that enable healthy lifestyles, are necessary. Legal strategies can be powerful tools in this endeavor. This review presents seven such strategies applicable at the federal, state, and local levels that can be employed by healthcare providers, public health practitioners, legislators, and other policymakers. They include …

Nissan Motor Co. V. Nissan Computer Corp.: The Point At Which Fame Is Determined Under The Federal Trademark Dilution Act, Bruce C. Piontkowski, Matthew S. Kenefick

Santa Clara High Technology Law Journal

No abstract provided.

Obesity And The Struggle Within Ourselves, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author argues that we ought to treat our eating, exercise habits, and girth as personal matters, for the most part, but that law can and should make a contribution, as an ally of our longer-term will against our immediate cravings. Law can be our ally in this fashion without command-and-control intrusion into our private lives. Such intrusion is at odds with our core beliefs and unlikely to produce public health success. It is more likely to provoke popular backlash--one reason why some who stand to gain from our unhealthy dining choices try to cast government efforts to inform these …

Controlling Corporate Speech: Is Regulation Fair Disclosure Unconstitutional, Antony Page, Katy H. Yang

Faculty Publications

We analyze whether Regulation Fair Disclosure, SEC Chairman Arthur Levitt's crowning achievement, violates the First Amendment. Regulation FD requires that a company that discloses material non-public information to certain private audiences must also make that information public, subject to certain safe-harbors. The Regulation solely targets speech, acting either to compel it to a public audience or as a burden on private disclosure. Part I examines the reach of Regulation FD, the enforcement actions to date, and currently available empirical data. Part II provides an introduction to the interaction of the First Amendment and SEC regulations affecting speech. Part III broadens …

Liberalism And Tort Law: On The Content And Economic Efficiency Of A Liberal Common Law Of Torts, Richard S. Markovits

Faculty Scholarship

This Article has three parts. Part I begins by delineating the protocol one should use to determine whether a society is an immoral society, an amoral society, a goal-based society of moral integrity, or a rights-based society of moral integrity (i.e., a society that engages in a bifurcated prescriptive-moral practice that strongly distinguishes moral-rights claims (about the just) from moral-ought claims (about the good), that is committed to the lexical priority of the just over the good, and that fulfills its commitments to some hard-to-specify, requisite extent). Part I then proceeds to outline the protocol one should use to determine …

“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas

Faculty Scholarship

For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …

I Want To Live: Medicine Betrayed By Ideology In The Political Debate Over Terri Schaivo, George J. Annas

Faculty Scholarship

The public's view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians-one carrying a saw, another an I.V. pole-with the caption, "Coming Soon to a Sickbed Near You . .. [tihe United States Congress." The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were …

Grounding Nike: Exposing Nike's Quest For A Constitutional Right To Lie, Tamara Piety

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

An Idea Whose Time Should Never Have Come, Roger B. Dworkin

Articles by Maurer Faculty

No abstract provided.

Make Room For Dying: End Of Life Care In Nursing Homes, Sandra H. Johnson

All Faculty Scholarship

The cornerstone of contemporary nursing home care is a commitment to patient rehabilitation. Improved care is an important and worthwhile goal, but it is a goal that has yet to make room for the dying. A significant proportion of older people will spend their final days in a nursing home. This article calls for a culture shift in nursing home care to promote improved care for not only those who can be rehabilitated but also those who are dying.

This article begins by addressing challenges to achieving this culture that are particular to the nursing home context. It then explains …

The Best Interest Standard: How Broad Judicial Discretion And Influences Of Social And Political Suggestion Have Led To An Abandonment Of The Rule’S Primary Purpose In Child Custody Decisions, Lakeisha J. Johnson

ExpressO

The vital questions in child custody disputes all concern that which is in the best interest of the child. Historically, interpretations of the “best interest” standard have been founded upon presumptions steeped in the notion of natural rights and duties based largely upon a mix of scientific and subjective conclusions regarding gender-based parenting roles and the need to sustain them. My research demonstrates that, as courts attempt to avoid the decisions of the past and submit to the societal will of the present, the modern application of the “best interest of the child” standard has led unexpectedly to an abandonment …

Nez Perce Tribe - Snake River Water Rights Act Of 2004, United States 108th Congress

Native American Water Rights Settlement Project

Federal Legislation: TITLE X--Snake River Water Rights Act of 2004, Consolidated Appropriations Act of 2005 PL 108-447, 118 Stat. 2809 (Dec. 8, 2004). Parties: Nez Perce Tribe, US, ID. The Agreement or "Mediator's Term Sheet" was entered in on April 20, 2004 and resolves the Nez Perce Tribe's water rights claimed in the Snake River Basin adjudication in Idaho.

Remember My Name: Choreographing The Fit Of Section 43 (A) To An Author's Right Of Attribution, Medea B. Chillemi

Seton Hall Journal of Sports and Entertainment Law

No abstract provided.

Indivisible Injury Negligence And Nuisance Cases –Proving Causation Among Multiple-Source Polluters: A State-By-State Survey Of The Law For New England, And A Proposal For A New Causation Framework, Paul Homer

The University of New Hampshire Law Review

[Excerpt] "The skies, soil, and water of every state are polluted every day. Whether the pollutants enter the atmos phere from coal plants or the water-ways from large farms, materials a bnormal to the “natural” environment are regularly emitted by a variety of sources over wide regions of the nation. To some extent, such emissions are normal and acceptable activities in modern society."

Switzerland's Patent Law History , Dominique S. Ritter

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Food And Drug Administration And The Command-And-Control Model Of Regulation, Eric R. Claeys

Saint Louis University Law Journal

No abstract provided.

Fat America: The Need For Regulation Under The Food, Drug, And Cosmetic Act, Sarah A. Kornblet

Saint Louis University Law Journal

No abstract provided.

Drug Abuse In Major League Baseball: A Look At Drug Testing In The Past, In The Present, And Steps For The Future, Scott Danaher

Seton Hall Journal of Sports and Entertainment Law

No abstract provided.

Corrective Justice, Equal Opportunity, And The Legacy Of Slavery And Jim Crow, David B. Lyons

Faculty Scholarship

Chattel slavery was a brutally cruel, repressive, and exploitative system of racial subjugation. When it was abolished, the former slaveholders owed the freedmen compensation for the terrible wrongs of enslavement. Ex-slaves sought reparations, especially in the form of land, but few received any sort of recompense. The wrongs they suffered were never repaired.

No one alive today can be held accountable for the wrongs of chattel slavery, and those who might now be called upon to pay reparations were not even born until many decades after slavery ended. For some scholars, the lack of accountable parties makes current reparations claims …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …

Declaration On Issues Of The Laws Of War, Corporate Liability And Other Issues Of International Law In Agent Orange Ats Litigation, Kenneth Anderson

Legislative Testimony & Comments

This 2004 expert declaration was offered on behalf of defendant corporations in Agent Orange litigation heard before Judge Jack Weinstein in 2005 as part of an Alien Tort Statute action by Vietnamese individuals and associations. I have posted it to SSRN because of the numerous requests I have had for it, and as it has been cited in scholarship. The Declaration starts by offering a basic discussion of the sources of international and in particular customary international law and the meaning and role of opinio juris, and their relation to ATS cases following the Sosa case. It then addresses laws …

The Opinion Volume 43 Issue 2 – November 1, 2004, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November, 1, 2004

Civil Rights And The "Twinkie" Tax: The 900-Pound Gorilla In The War On Obesity, Sayward Byrd

Louisiana Law Review

No abstract provided.

Regulation Of The Human Tissue Industry: A Call For Fast-Track Regulations, Michael Leachman

Louisiana Law Review

No abstract provided.

Judicial Review Of Agency Inaction: An Arbitrariness Approach, Lisa Schultz Bressman

Vanderbilt Law School Faculty Publications

This Article contends that the current law governing judicial review of agency inaction, though consistent with the prevailing theory of agency legitimacy, is inconsistent with the founding principles of the administrative state. The Supreme Court's reluctance to allow judicial review of agency inaction reflects the popular view that agency decision-making should be subject foremost to the scrutiny of politically accountable officials. The difficulty is that even scholars who generally support this view of agency decision-making reject the Court's treatment of agency inaction. Yet these scholars have failed to appreciate the reason. The reason is that the founding principles of the …

Mitigation And The Americans With Disabilities Act, Jill Elaine Hasday

Michigan Law Review

It is an open question whether the prohibition on employment discrimination in the Americans with Disabilities Act (ADA) protects plaintiffs who have not attempted to mitigate the effect of their disability on their ability to work. Suppose, for example, that a job applicant has severely impaired vision because of a corneal disease. He can have corneal transplant surgery that his doctors recommend and expect will allow him to see much more clearly, but he does not want to have the surgery because of the complications sometimes associated with the operation and the possibility that the surgery will not work. He …

Valuing Life: A Plea For Disaggregation, Cass R. Sunstein

Duke Law Journal

Each government agency uses a uniform figure to measure the value of a statistical life (VSL). This is a serious mistake. The very theory that underlies current practice calls for far more individuation of the relevant values. According to that theory, VSL should vary across risks. More controversially, VSL should vary across individuals -- even or especially if the result would be to produce a lower number for some people than for others. One practical implication is that a higher value should be given to programs that reduce cancer risks. Another is that government should use a higher VSL for …

The 1953 International North Pacific Fisheries Convention: Half-Century Anniversary Of A New Department In Ocean Law, Harry N. Scheiber

San Diego International Law Journal

In the broadest historical perspective, the Convention laid the groundwork for the modern-day norm of multi-lateralist style and structure for sustainable management of ocean resources. It is fitting, then, that a conference bringing together experts on ocean law and policy from many countries would have gathered in 2003 at the University of California, Berkeley to consider the current-day initiatives in multilateralism and, at the same time, to recall their origins and precursors starting with the International North Pacific Fisheries Convention.