Digital Commons Network^™

Why Lawyers Are Unhappy, Martin E.P. Seligman, Paul R. Verkuil, Terry H. Kang

Articles

[According to the authors of this article, the growing unhappiness of lawyers, particularly young lawyers, stems from three causes: (1) Lawyers are selected for their pessimism (or "prudence") and this generalizes to the rest of their lives; (2) Young associates hold jobs that are characterized by high pressure and low decision latitude, exactly the conditions that promote poor health and poor morale; and (3) American law is to some extent a zero-sum game, and negative emotions flow from zero-sum games....

This article has been shared with practitioners as well as academics. It grows out of faculty seminars held at the …

Reconsidering The Nondelegation Doctrine: Universal Service, The Power To Tax, And The Ratification Doctrine, Ronald J. Krotoszynski Jr.

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No abstract provided.

Navigating Dangerous Constitutional Straits: A Prolegomenon On The Federal Marriage Amendment And The Disenfranchisement Of Sexual Minorities, Ronald J. Krotoszynski Jr., E. Gary Spitko

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Navigating Dangerous Constitutional Straits A Prolegomenon on the Federal Marriage Amendment and the Disenfranchisement of Sexual Minorities considers the nature of the constitutional amendment process and the Supreme Courts historical approach to incorporating new amendments into the existing constitutional text Professors Krotoszynski and Spitko argue that given the Supreme Courts consistent narrow reading of new amendments to preserve preexisting constitutional rights the Federal Marriage Amendment must be broadly written to override expressly due process and equal protection guarantees against not only sexual orientation discrimination but also gender discrimination In our view however if a proposed Federal Marriage Amendment were sufficiently …

Coverage Of Reproductive Technologies Under Employer-Sponsored Health Care Plans, Elizabeth Pendo

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The federal courts have issued two important decisions regarding non-discriminatory insurance coverage of conditions and treatments associated with sex, disability or both, such as prescription contraception and infertility treatment. Cases like Erickson and Saks are important because, as ERISA scholars know, state law mandates regarding coverage are unlikely to lead to uniform results due to the structure of ERISA's preemption provisions, and none of the federal proposals addressing infertility treatment or prescription contraception have been enacted to date.

What I would like to do is outline the impact of ERISA in this area, and offer some thoughts on one of …

Telling Stories About Health Insurance: Using New Films In The Classroom, Elizabeth Pendo

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In keeping with the theme of "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. It builds upon a presentation that I gave along with Professors Timothy S. Hall and Ross D. Silverman at the 2004 Health Law Teachers Conference entitled "Health Law, Policy and Media," and was inspired by Professor Paul Bergman's …

The Common Law Power Of The Legislature: Insurer Conversions And Charitable Funds, Jill R. Horwitz, Marion R. Fremont-Smith

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New York's Empire Blue Ccoss and Blue Shield conversion from nonprofic cofor­ profic form has considerable legal significance. Three aspects of the conversion ma.ke checase unique: the role of the scace legislature in directing the disposicion of the conversion assets, che face chac it made itself che primary beneficiary of chose assets, and the actions of che scace attorney general defending the state rather than che public inceresc in che charitable assets. Drawing on several cenruries of common Law rejecting the Legislacive power to direct the disposition of charitable funds, chis article argues chat the legislature lacked power cocontrol che …

Learning The Value Of Drugs - Is Rofecoxib A Regulatory Success Story?, Rebecca S. Eisenberg

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Controversy over recent revelations concerning the adverse cardiovascular effects of selective cyclooxygenase- 2 (COX-2) inhibitors has generally been framed as a story of regulatory failure, in which the Food and Drug Administration (FDA) has failed in its mission to protect the public from unsafe products. But this simplistic understanding of the mission of the FDA seems to make failure all but inevitable, if the reliable observation of the risks and benefits of a drug requires rigorous long-term studies. Perhaps in an earlier era the goal of drug regulation was simply to protect the public from poisons. Today, drug regulation guides …

Do Institutions Matter? The Impact Of The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Adam C. Pritchard, Stephen J. Choi, Jill E. Fisch

Articles

When Congress enacted the Private Securities Litigation Reform Act in 1995 ("PSLRA"), the Act's "lead plaintiff' provision was the centerpiece of its efforts to increase investor control over securities fraud class actions. The lead plaintiff provision alters the balance of power between investors and class counsel by creating a presumption that the investor with the largest financial stake in the case will serve as lead plaintiff. The lead plaintiff then chooses class counsel and, at least in theory, negotiates the terms of counsel's compensation. Congress's stated purpose in enacting the lead plaintiff provision was to encourage institutional investors-pension funds, mutual …

After 70 Years Of The Nlrb: Warm Congratulations -- And A Few Reservations, Theodore J. St. Antoine

Articles

The following essay is based on a talk the speaker was invited to deliver to the National Labor Relations Board on June 3 in Washington, D.C., on the occasion of the agency's 70th anniversary.

Converged Vs. Dedicated Ipsec Encryption Testing In Gigabit Ethernet Networks, Luther Troell, Jason Burns, Kurt Chapman, Dave Goddard, Matt Soderlund, Chris Ward

Articles

In January, 2005, Safenet, Inc. contacted the networking group to investigate the possibility of using our students for the purpose of comparing the performance of dedicated encryption device to an integrated encrypting device. The tests would also include a performance comparison between Data Link Layer (Layer 2) devices and Network Layer (Layer 3) devices. It was decided that the tests would consist of throughput, frame loss, and network latency. Two network topologies were used for the experiments: gigabit Ethernet and SONET OC-48. The equipment to be tested was Safenet’s High Assurance 4000 Gateway (HA4000) for the gigabit Ethernet topology and …

Combining Cytotoxic And Immune-Mediated Gene Therapy To Treat Brain Tumors, James Curtin, Gwendalyn King, Marianela Candolfi, Remy Greeno, Kurt Kroeger, Pedro Lowenstein, Maria Castro

Articles

Glioblastoma (GBM) is a type of intracranial brain tumor, for which there is no cure. In spite of advances in surgery, chemotherapy and radiotherapy, patients die within a year of diagnosis. Therefore, there is a critical need to develop novel therapeutic approaches for this disease. Gene therapy, which is the use of genes or other nucleic acids as drugs, is a powerful new treatment strategy which can be developed to treat GBM. Several treatment modalities are amenable for gene therapy implementation, e.g. conditional cytotoxic approaches, targeted delivery of toxins into the tumor mass, immune stimulatory strategies, and these will all …

By Any Other Name?: On Being "Regarded As" Black, And Why Title Vii Should Apply Even If Lakisha And Jamal Are White, Angela Onwuachi-Willig, Mario L. Barnes

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Applying theories concerning the social construction of race, this Article borrows from the definition of disability under the Americans with Disabilities Act of 1990 (ADA) and the courts' analyses of disability discrimination cases under the "regarded as" disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity. Using the "regarded as" provision as a model, this Article proposes a new method for recognizing discrimination claims based on the use of proxies for race-even when those proxies have been used …

Principles Of Non-Arbitrariness: Lawlessness In The Administration Of Welfare, Christine N. Cimini

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This article explores whether there exists a concept of non-arbitrariness that imposes limitations on the administration of welfare benefits without rules, regulations, policies or procedures. To address this question, the article examines the concept of non-arbitrariness within various jurisprudential doctrines and the potential applicability of the concept to limit arbitrary governmental action in the welfare context. In each of the areas where courts regulate arbitrary governmental action, underlying judicial concerns give rise to jurisprudential principles. Four principles stand out. First, at a minimum, there must be a rational relationship between the government’s ends and the means it chooses to reach …

Holding Intellectual Property, Xuan-Thao Nguyen

Articles

The collapse of WorldCom, Inc., exposed a complex web of accounting irregularities. Within that web, recent filings by Dick Thornburgh, WorldCom's Bankruptcy Court Examiner, reveal a different type of scheme that involves the holding of intellectual property. Further scrutinizing the scheme reveals that WorldCom and its tax advisors, KPMG Peat Marwick LLP (KPMG), devised a tax avoidance scheme through the creation of an intellectual property holding company (IP holding company). This type of scheme has been widely and quietly utilized in the last twenty years by many corporations with substantial intellectual property.

Indeed, as state taxing authorities have become more …

Judicial Regrets And The Case Of The Cushman Dam, William H. Rodgers, Jr.

Articles

This essay is a criticism of the Ninth Circuit's en banc decision in Skokomish Indian Tribe v. United States [401 F.3d 979 (9th Cir. 2005]. It finds particular fault with the court's understanding of Indian treaty rights as "something given," and its outlandish conclusion that fishing was not a "primary purpose" of the Stevens treaties.

The article further criticizes the court's treatment of the "continuing nuisance" doctrine that is applied to afford a statute of limitations defense to enterprises that did lasting environmental damage by diverting the entire North Fork of the Skokomish River out of the watershed.

It concludes …

Reforming The Criminal Rap Sheet: Federal Timidity And The Traditional State Functions Doctrine, Mary De Ming Fan

Articles

For decades, criminal justice officials have based key decisions about a defendant's fate and crime deterrence on a tool deplored by practitioners for its indecipherability and potential for inaccuracy or incompleteness—the rap sheet. Though the Supreme Court's criminal rights evolution progressed late last year to requiring rigor in documenting penalty maximum-enhancing prior convictions, the problem of the rap sheet has received little notice from jurists and scholars because the rap sheet plays its central role in discretionary decision-making areas shielded from scrutiny.[para] The rap sheet is not just a practitioner's problem. The flawing of the rap sheet is a parable …

Sports Medicine Conflicts: Team Physicians Vs. Athlete-Patients, Steve P. Calandrillo

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Team physicians for professional sports franchises face a conflict of interest created by the competing loyalties they owe to the team that employs them and to the athlete-patient they must treat. Marketing agreements under which physicians pay significant sums of money to be designated as the team's "official healthcare provider" exacerbate this conflict. These marketing arrangements call into question the independent judgment of team physicians and cause players to question the quality of care they receive.

This paper explores several solutions to the growing conflicts between athletes and team doctors with the goal of enhancing players' trust in the medical …

The Exxon Valdez Reopener: Natural Resources Damage Settlements And Roads Not Taken, William H. Rodgers, Jr., J.B. Crosetto Iii, C.A. Holley, T.C. Kade, J.H. Kaufman, C.M. Kostelec, K.A. Michael, R.J. Sandberg, J.L. Schorr

Articles

The 1989 Exxon Valdez oil spill caused extensive natural resource damage to the Prince William Sound. Lawsuits addressing this natural resource damage resulted in a settlement that required Exxon to pay $900 million over time to trustees charged with spending this money to restore the damaged environment of the Sound and nearby areas. The settlement included a “Reopener Clause,” which pledges Exxon to spend an additional $100 million to fund restoration or rehabilitation of resources whose injuries were not foreseeable in 1989.

This Article urges the State of Alaska and the United States to seek enforcement of the Reopener Clause, …

Intellectual Property Rights And Stem Cell Research: Who Owns The Medical Breakthroughs?, Sean M. O'Connor

Articles

This article will not address the science and ethics of stem cell research—at least as far as those topics are normally addressed in the existing literature. Instead, this article argues that an even more contentious battle is looming on the horizon, with dire practical consequences: Namely, who will own the revolutionary medical breakthroughs that are supposed to emerge from this research? Along the way, this article will assume that stem cell research will progress in some fashion and that at least some of the purported benefits will materialize.

But the central premise is that the pitch of the ownership battle …