Digital Commons Network^™

Regulatory Monitors: Policing Firms In The Compliance Era, Rory Van Loo

Faculty Scholarship

Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. This Article is the first to chronicle the statutory rise of regulatory monitors and …

Attorney As Accompagnateur: Resilient Lawyering When Victory Is Uncertain Or Nearly Impossible, Margaret Reuter, Stephen A. Rosenbaum, Danielle Pelfrey Duryea

Faculty Scholarship

Social justice lawyers come to the profession intending to make a difference through the instruments of law. And gloriously, they often make a difference in people’s lives for the better. They make our world a more just, compassionate, and tolerant place. But there is no denying that, in poverty law practice, legal success can be illusive, ephemeral, or perhaps a mirage. How does that lawyer feel when the legal remedies at her disposal, even if “successful,” fail to mitigate the injustices suffered by her clients? Are there definitions of professional satisfaction and success that are enduring, even if legal success …

Rising Confusion About "Arising Under" Jurisdiction In Patent Cases, Paul Gugliuzza

Faculty Scholarship

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . …

Law, Technology And Patient Safety, Kathryn Zeiler, Gregory Hardy

Faculty Scholarship

Medical error is the third leading cause of death in the United States, In an effort to increase patient safety, various regulatory agencies require reporting of adverse events, but reported counts tend to be inaccurate. In 2005, in an effort to reduce adverse event rates, Congress proposed a list of “never events,” adverse events, such as wrong-site surgery, that should never occur in hospitals, and authorized CMS to refuse payment for care required following such events. CMS has since pushed for further regulation, “such as putting more payment at risk, increasing transparency, increasing frequency of quality data reviews, and stepping …

Us Military Medical Ethics In The War On Terror, George J. Annas, Sondra S. Crosby

Faculty Scholarship

Military medical ethics has been challenged by the post-11 September 2001 ‘War on Terror’. Two recurrent questions are whether military physicians are officers first or physicians first, and whether military physicians need a separate code of ethics. In this article, we focus on how the War on Terror has affected the way we have addressed these questions since 2001. Two examples frame this discussion: the use of military physicians to force-feed hunger strikers held in Guantanamo Bay prison camp, and the uncertain fate of the Department of Defense’s report on ‘Ethical Guidelines and Practices for US Military …

Emergent Regulatory Systems And Their Challenges: The Case Of Combination Medical Products, George Horvath

Faculty Scholarship

Where regulatory systems overlap, courts and scholars often focus on the undesirable aspects of the overlap—the ways in which systems conflict. One such context involves the regulation of prescription drugs and medical devices by the FDA’s premarket evaluation processes and by state common-law tort and products liability actions. FDA regulation and state common law are often described as separate, conflicting regulatory systems. This Article challenges that description by proposing a model in which FDA premarket evaluation and state common law function as a single regulatory system.

This model brings order to the Supreme Court’s seemingly inconsistent medical products preemption cases, …

The Fair Deal Universal Health Care Proposals: Historians’ Perspectives From From 1970 To 2003, George Horvath

Faculty Scholarship

No abstract provided.

The Fatal Attraction Of Pay-For-Delay, Robin Feldman, Prianka Misra

Faculty Scholarship

No abstract provided.

The Burden Of Federalism: Challenges To State Attempts At Controlling Prescription Drug Costs, Jaime S. King, Katherine L. Gudiksen

Faculty Scholarship

No abstract provided.

The Law And Vaccine Resistance, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Environmental Law. Disrupted, David Takacs

Faculty Scholarship

No abstract provided.

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The New Legislation, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Artificial Intelligence In The Health Care Space: How We Can Trust What We Cannot Know, Robin Feldman, Ehrik Aldana, Kara Stein

Faculty Scholarship

As Al moves rapidly into the health care field, it promises to revolutionize and transform our approach to medical treatment. The black-box nature of AI, however, produces a shiver of discomfort for many people. How can we trust our health, let alone our very lives, to decisions whose pathways are unknown and impenetrable?

As challenging as these questions may be, they are not insurmountable. And, in fact, the health care field provides the perfect ground for finding our way through these challenges. How can that be? Why would we suggest that a circumstance in which we are putting our lives …

The Sound And Fury Of Patent Activity, Robin C. Feldman, Mark A. Lemley

Faculty Scholarship

No abstract provided.

Consultants, The Environment, And The Law, Dave Owen

Faculty Scholarship

Conventional wisdom assumes that private-sector businesses will oppose, undermine, or distort government regulation. That assumption also underpins many areas of theoretical inquiry; theorists commonly assume that effective public-law regimes must be protected from the self-interested machinations of businesses, or that such protection is such a lost cause that most public regulation is doomed to fail. This Article investigates a different set of relationships between businesses and regulation. It does so by using the environmental consulting industry, which helps businesses and governments comply with environmental regulations, as a case study. An empirical inquiry into two subfields of the industry reveals that …

Scattered: The Assimilation Of Sushi, The Internment Of Japanese Americans, And The Killing Of Vincent Chin, A Personal Essay, Frank Wu

Faculty Scholarship

In a personal Essay, Frank H. Wu discusses the acceptance of sushi in America as a means of analyzing the acceptance of Japanese Americans, before, during, and after World War II. The murder of Vincent Chin in Detroit in 1982 is used as a defining moment for Asian Americans, explaining the shared experiences of people perceived as "perpetual foreigners."

The Law Against Family Separation, Carrie F. Cordero, Heidi Li Feldman, Chimene Keitner

Faculty Scholarship

Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President's pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The "specificity requirement" means that vague and broadly worded pardons are invalid. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper's argument rests on an originalist understanding of the constitutional text, …

Whose Voices Count In Biodiversity Conservation? Ecological Democracy In Biodiversity Offsetting, Redd , And Rewilding, David Takacs

Faculty Scholarship

Ecological democracy seeks environmentally sustainable ends through broad, active democratic participation. What happens when laws fostering participation in environmental decision-making and biodiversity preservation lead to differing results? What is best for biodiversity may not be what for local citizens believe is best. I examine conflicts and congruencies in the context of Biodiversity Offsetting, REDD+ (Reducing Emissions from Deforestation and forest Degradation), and the Rewilding movement. I ask questions that are legal (Who has what legal rights to speak for or against programs that enhance biodiversity?), epistemological (Whose expertise and knowledge matters when scientists and non-scientists don’t agree?), axiological (Are some …

Legal And Policy Responses To Vaccine-Preventable Disease Outbreaks, Leila Barraza, Dorit R. Reiss, Patricia Freeman

Faculty Scholarship

No abstract provided.

Health Equity, School Discipline And Restorative Justice, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

No abstract provided.

Evidence On Fire, Jennifer D. Oliva, Valena E. Beety

Faculty Scholarship

Fire science, a field largely developed by lay “arson investigators,” police officers, or similar first responders untrained in chemistry and physics, has been historically dominated by unreliable methodology, demonstrably false conclusions, and concomitant miscarriages of justice. Fire investigators are neither subject to proficiency testing nor required to obtain more than a high school education. Perhaps surprisingly, courts have largely spared many of the now- debunked tenets of fire investigation any serious scientific scrutiny in criminal arson cases. This Article contrasts the courts’ ongoing lax admissibility of unreliable fire-science evidence in criminal cases with their strict exclusion of the same flimsy …

Opioid Multidistrict Litigation Secrecy, Jennifer D. Oliva

Faculty Scholarship

No abstract provided.

Regulating Bite Mark Evidence: Lesbian Vampires And Other Myths Of Forensic Odontology, Jennifer D. Oliva, Valena E. Beety

Faculty Scholarship

e third piece in a trilogy that examines and evaluates the standards that American co e proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts. This Article takes …

Bounded Rationality, Paternalism, And Trademark Law, Stacey Dogan

Faculty Scholarship

We don’t need behavioral economics to understand that trade marks can shape consumer preferences in ways that have little to do with objectively measurable differences in product quality. Scholars, judges, economists, and policymakers have long recognized the tendency of strong marks to skew consumer decisions. The concern lies not only in price effects but with the allocative effects of encouraging investment in persuasive advertising, rather than product innovation or similar “productive” pursuits. While informative advertising can benefit consumers, advertising that creates artificial brand-based differences between otherwise identical products appears not only costly to consumers but also socially wasteful.

This Essay …

Mental Health Problems Of The Youngest Generation Of American Veterans (Problemy Zdrowia Psychicznego Najmłodszego Pokolenia Weteranów Amerykańskich), Jaroslaw Richard Romaniuk

Faculty Scholarship

Wartime activities determine the threats to a soldier’s life and health. To prepare soldiers for a new forms of warfare, one should know the challenges the soldier faces in the midst of battle and after returning home. From 2001 to 2015, 1.2 million American soldiers returning from Iraq and Afghanistan used the health care services of the Department of Veterans’ Affairs. An analysis of the resulting medical interventions makes possible a long term evaluation of the effects of war, some of which appear only after the soldier returns to civilian life. This study analyzes the research on the mental health …

Concurrent Atlantoaxial Septic Arthritis And Septic Thrombosis Of The Ophthalmic Vein Due To Staphylococcus Aureus: A Case Report And Review Of The Literature, Robin L.P. Jump

Faculty Scholarship

Atlantoaxial joint septic arthritis and superior ophthalmic vein thrombosis are uncommon manifestations of Staphylococcus aureus infection. A 68-year-old man presented with acute-onset neck pain and diplopia. Imaging studies revealed atlantoaxial septic arthritis and right superior ophthalmic vein thrombosis. Blood cultures grew methicillin-susceptible S. aureus. We review the literature describing these 2 uncommon manifestations of a common pathogen.

Green Lacewings And Water Sprays For Azalea Lace Bug Control, Jana C. Lee, Barry Finley, S. Michael Flores, Katerina Velasco Graham, J. Megan Woltz, Jessica S. Wong, Robin S. Rosetta

Faculty Scholarship

The azalea lace bug, Stephanitis pyrioides, is a serious pest of azaleas and rhododendrons which is often controlled by systemic insecticides. However, the efficacy of softer approaches such as biological control and water sprays against this pest on rhododendrons is unknown. Therefore, we tested the commercially available green lacewing predator, Chrysoperla rufilabris, and water sprays on lace bug infestation in one laboratory and four field trials. First, 2nd instar predator larvae were confirmed to consume lace bug nymphs and sometimes adults. Second, tapping predator larvae from hexcel units over dry leaves of potted rhododendrons and shaking loose eggs …

Drosophila Suzukii Fight Performance Reduced By Starvation But Not Affected By Humidity, Jessica S. Wong, Adam C. Cave, Danielle M. Lightle, Walter F. Mahaffee, Steve E. Naranjo, Nick G. Wilman, J. Megan Woltz, Jana C. Lee

Faculty Scholarship

Drosophila suzukii is widely studied because of its status as a global pest of berries and soft fruits. Environmental conditions and access to food resources impact the physiology and ftness of D. suzukii; these factors could also affect dispersal. Flight mills are a convenient tool for measuring and comparing the fight performance of insects. In this study, two experiments examined the efects of diet and humidity on D. suzukii fight performance using custom-built fight mills, and a third experiment compared the energy reserves of D. suzukii flown or not flown on fight mills. Over all fight assays, the median fight …

Sorting Out White-Collar Crime, Miriam Baer

Faculty Scholarship

No abstract provided.

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …