Digital Commons Network^™

Putting The Cart Before The Horse: The Need To Re-Examine Damage Caps In California's Elder Abuse Act*

San Diego Law Review

This Comment addresses what has been and continues to be a very controversial area of the law-damage caps imposed on plaintiffs who bring medical malpractice claims against health care providers in California. Since 1975, the state has restricted these actions as a means of holding down liability insurance premiums and reducing litigation through a package of statutes called the Medical Injury Compensation Reform Act (MICRA). In 1991, the legislature extended these limitations to claims brought under the state's Elder Abuse Act while at the same time providing for enhanced remedies in such actions to encourage litigation. Today, upon showing clear …

Courts Or Tribunals? Federal Courts And The Common Law, Peter L. Strauss

Faculty Scholarship

Every Justice, save perhaps Justice Breyer, has recently subscribed to an opinion raising questions in one or another context about whether federal courts can appropriately exercise common law law-making functions that had, until these questions began to appear, been characteristic of all American courts. To invoke a special class of "federal tribunal" whose actions are not to be confused with those of common law courts suggests broader implications than the long-familiar debates about Erie RR. Co. v. Tompkins, or more recent contentions over when, if ever, it is appropriate to infer privately enforceable judicial remedies in aid of federal statutes; …

Punishing Reproductive Choices In The Name Of Liberal Genetics, Alexander Morgan Capron

San Diego Law Review

When the four American moral philosophers who individually have already made the most significant contributions to the ethical analysis of contemporary health care and medicine collaborate, it should come as no surprise that their joint effort is a lucid and powerful analysis of the principles that a just and humane society would employ in setting policies about how the new tools of molecular genetics should be used for human betterment. In From Chance to Choice: Genetics and Justice, Allen Buchanan, Dan W. Brock, Norman Daniels, and Daniel Wikler aimed to steer a middle course between two extreme models. The first …

Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes

University of Michigan Journal of Law Reform

This Article considers the reasons for reinterpretations of age and disability and examines the fundamental reasons for changes in the implementation of both the ADA and ADEA. Part I presents the basic structure and relevant requirements of the two statutes and comments on the reasons their legislative purposes are not often seen as overlapping. Part II discusses the recent Supreme Court decisions that have undermined the purposes and implementation of both the ADA and ADEA and chilled causes of action based on the ADA and ADEA. Part III projects the current problems with anti-discrimination causes into the future, when older …

Civil War Pension Attorneys And Disability Politics, Peter Blanck, Chen Song

University of Michigan Journal of Law Reform

Professor Blanck and Dr. Song provide a detailed examination of the pension disability program established after the Civil War for Union Army Veterans. They use many original sources and perform several statistical analyses as the basis for their summary. They draw parallels between this disability program and the ADA, and they point out that current ADA plaintiffs encounter many of the same social, political and even scientific issues that Union Army veterans dealt with when applying for their disability pensions. The Article demonstrates that history can help predict the trends within, and evolution of the ADA--essentially leading to a better …

Presidential Management Of The Administrative State: The Not-So-Unitary Executive, Robert V. Percival

Duke Law Journal

No abstract provided.

Profile, Fall 2001

Alumni Magazines

No abstract provided.

Probability Neglect: Emotions, Worst Cases, And Law, Cass R. Sunstein

Coase-Sandor Institute for Law & Economics Research Paper Series

When strong emotions are triggered by a risk, people show a remarkable tendency to neglect a small probability that the risk will actually come to fruition. Experimental evidence, involving electric shocks and arsenic, supports this claim, as does real-world evidence, involving responses to abandoned hazardous waste dumps, the pesticide Alar, and anthrax. The resulting “probability neglect” has many implications for law and policy. It suggests the need for institutional constraints on policies based on ungrounded fears; it also shows how government might effectively draw attention to risks that warrant special concern. Probability neglect helps to explain the enactment of certain …

A Hybrid Approach To The Use Of Deliberate Ignorance In Conspiracy Cases, Jessica A. Kozlov-Davis

Michigan Law Review

When hunted, the ostrich is said to run a certain distance and then thrust its head into the sand, thinking, because it cannot see, that it cannot be seen by the hunters. Legal parlance therefore refers to the "ostrich instruction," used when a defendant acts with the awareness of a high probability of the existence of an incriminating fact, but remains deliberately ignorant as to whether the fact actually exists, hoping his ignorance will maintain his innocence. The defendant is like the ostrich - he thinks that if he does not actually see the facts, even though he knows they …

Emergency Preparedness From A Health Perspective: Preparing For Bioterrorism At The Federal, State, And Local Levels, Robin J. Strongin

National Health Policy Forum

Despite the good intentions prior to and in the aftermath of the terrorist attacks of September 11, 2001, the existence of significant gaps in the country's preparedness became increasingly clear in the weeks that followed. This background paper provides an overview of the state of bioterrorism preparedness at all levels of government, identifying both the gaps and the steps being taken to close them. A series of reference materials, including a suggested reading list and Web site addresses, are listed at the end of the paper.

U.S. Economic Sanctions Regarding The Proliferation Of Nuclear Weapons: A Call For Reform Of The Arms Export Control Act Sanctions, Sarah P. Schuette

Cornell International Law Journal

No abstract provided.

What About Wilbur? Proposing A Federal Statute To Provide Minimum Humane Living Conditions For Farm Animals Raised For Food Production, Amy Mosel

University of Dayton Law Review

No abstract provided.

Overview Of The Use Of Genetically Modified Organisms And Pesticides In Agriculture`, David Pimentel

Indiana Journal of Global Legal Studies

No abstract provided.

Introduction: Syncopated Sustainable Development (Sustainable Development, Agriculture, And The Challenge Of Genetically Modified Organisms Symposium), John S. Applegate, Alfred C. Aman

Indiana Journal of Global Legal Studies

No abstract provided.

Food Systems And Dietary Perspectives: Are Genetically Modified Organisms The Best Way To Ensure Nutritionally Adequate Food?, Ellen Messer

Indiana Journal of Global Legal Studies

No abstract provided.

Promise, Peril, Precaution: The Environmental Regulation Of Genetically Modified Organisms, Stephen Tromans

Indiana Journal of Global Legal Studies

No abstract provided.

Patents And Traditional Knowledge Of The Uses Of Plants: Is A Communal Patent Regime Part Of The Solution To The Scourge Of Bio Piracy, Ikechi Mgbeoji

Indiana Journal of Global Legal Studies

No abstract provided.

Genetically Modified Organisms In Peasant Farming: Social Impact And Equity, Stephen B. Brush

Indiana Journal of Global Legal Studies

No abstract provided.

The Prometheus Principle: Using The Precautionary Principle To Harmonize The Regulation Of Genetically Modified Organisms, John S. Applegate

Indiana Journal of Global Legal Studies

No abstract provided.

The Great, Global Promise Of Genetically Modified Organisms: Overcoming Fear Misconceptions, And The Cartagena Protocol On Biosafety, Kurt Buechle

Indiana Journal of Global Legal Studies

No abstract provided.

Biotechnology And Agriculture: The Common Wisdom And Its Critics, Mark Sagoff

Indiana Journal of Global Legal Studies

No abstract provided.

In One Place, But Not Another: When The Law Encourages Breastfeeding In Public While Simultaneously Discouraging It At Work, Emily Suski

Faculty Publications

In this Essay, the author takes a novel approach to the topic of breastfeeding and work by exploring the trend among states to exempt breastfeeding from criminal indecent exposure laws and comparing this trend to the support, or lack thereof, in laws and policy for breastfeeding at work. The author's comparison reveals that while there is a trend to support breastfeeding in public, there is no such trend in the law to support breastfeeding in the relatively more private work environment.

The author argues that this disparity is both counterintuitive and serves to limit women's choices regarding breastfeeding and work. …

A Proactive Solution To The Inherent Dangers Of Biotechnology: Using The Invention Secrecy Act To Restrict Disclosure Of Threatening Biotechnology Patents, James W. Parrett Jr.

William & Mary Environmental Law and Policy Review

No abstract provided.

Cuffed Love: Do Prison Babies Ever Smile?, Leda M. Pojman

Buffalo Women's Law Journal

No abstract provided.

Realities Of Rape: Of Science And Politics, Causes And Meanings, Owen D. Jones

Vanderbilt Law School Faculty Publications

This review essay discusses the book A Natural History of Rape: Biological Bases of Sexual Coercion, by Randy Thornhill and Craig Palmer (MIT Press, 2000). The essay builds on work previously appearing in Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827 (1999) and Owen D. Jones, Law and the Biology of Rape: Reflections on Transitions, 11 Hastings Women's Law Journal 151 (2000).

The Arithmetic Of Arsenic, Cass R. Sunstein

Coase-Sandor Institute for Law & Economics Research Paper Series

What does cost-benefit mean, or do, in actual practice? When agencies are engaging in cost-benefit balancing, what are the interactions among law, science, and economics? This Article attempts to answer that question by exploring, in some detail, the controversy over EPA’s proposed regulation of arsenic in drinking water. The largest finding is that science often can produce only “benefit ranges,” and wide ones at that. With reasonable assumptions based on the existing science data, the proposed arsenic regulation can be projected to save as few as 0 lives and as many as 112. With reasonable assumptions, the monetized benefits of …

Limiting A Surrogate's Authority To Terminate Life-Support For An Incompetent Adult, Jennifer L. Sabo

North Carolina Law Review

No abstract provided.

Genetics And Toxic Torts, Gary E. Marchant

Seton Hall Law Review

No abstract provided.

Quality Of Life As Defined By Chinese Americans With Disabilities: Implications For Rehabilitation Services, Nan Zhang Hampton, Vickie Chang

Institute for Asian American Studies Publications

We hypothesized that Chinese Americans with disabilities may remain culturally attached to their ancestors' homeland and this cultural attachment may have influences on the concept of Quality of Life (QOL). That is, QOL may be perceived, by Chinese Americans with disabilities, not only as an individual's satisfaction with his or her life, but also the person's fulfillment of his or her responsibilities to his or her family and community. Of course, this hypothesis needs to be examined. Such an investigation may provide rehabilitation counselors with insights into the meaning of QOL from the viewpoint of Chinese Americans with disabilities. It …

Preserving The Womb Of The Unknown Species With Hotspots Legislation, John Charles Kunich

UC Law Journal

The concept of "hotspots" is a cutting-edge biodiversity topic that has never received scholarly legal analysis until now. Recent credible scientific research indicates that most of the species on earth are concentrated within only a few ecosystems called hotspots. However, the current global extinction crisis, raging without any effective legal control, threatens these hotspots and the species they harbor. It is a matter of the highest importance to preserve the hotspots in the face of increasing threats from development, pollution, and other pressures.

This Article begins by tracing the history and science of extinction, including evidence as to the magnitude …