Digital Commons Network^™

Dialogues, Dilemmas, And Disclosures: Genomic Research And Incidental Findings, Lynn W. Bush, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Saving Smokers From Themselves: The Paternalistic Use Of Cigarette Taxes, Gary M. Lucas Jr.

Faculty Scholarship

Governments at all levels have significantly increased cigarette taxes in recent years. Under the framework traditionally used by tax policy analysts, these tax increases are justified (1) if they are necessary to force smokers to internalize the harm that smoking causes others or (2) if they are a fair and efficient way to fund the government. But economists have generally concluded that on net, smokers do not impose large costs on third parties. In addition, heavily taxing cigarettes places a significant financial burden on low-income smokers and their families, which raises fairness concerns. As a result, scholars who support cigarette …

Alternative Strategies For Addressing The Presence And Effects Of Pharmaceutical And Personal Care Products In Fresh Water Resources, Gabriel Eckstein, George William Sherk

Faculty Scholarship

In recent years, new information has arisen to challenge this assumption. Chemicals from a wide variety of pharmaceutical and personal care products ("PPCPs"), their byproducts and endocrine disrupting compounds ("EDCs") have received growing attention from the water treatment and wastewater treatment community because of the ability of PPCPs to persist, or only partially degrade, in water and during wastewater treatment.

Several federal agencies, including the EnvironmentAl Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), the U.S. Department of Agriculture ("USDA"), the U.S. Geological Survey ("USGS"), and the Centers for Disease Control and Prevention ("CDC"), have the potential to be …

Exactions For The Future, Timothy M. Mulvaney

Faculty Scholarship

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …

Choosing Punishment, Miriam H. Baer

Faculty Scholarship

No abstract provided.

The Current Transitional State Of Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

Article Extract:

Obviously, there is much to commend in court-connected mediation and what it offers to people caught up in disputes. With the help of mediators, parties may find it more feasible to reflect on their legal and extra-legal needs, prioritize among these needs, engage in open and thoughtful conversation, develop integrative solutions, and even consider the mediators' dispassionate feedback regarding positions or expectations. Proponents of court-connected mediation can also point to a multitude of accomplishments. For example, and most strikingly, many cases settle in mediation.' For the vast majority of those cases, litigants express satisfaction with the process and …

Novel Urinary Protein Biomarkers Predicting The Development Of Microalbuminuria And Renal Function Decline In Type 1 Diabetes, Daniela Schlatzer, Mark R. Chance, Jean-Eudes Dazard, Xiaolin Li, Fred Hazlett

Faculty Scholarship

OBJECTIVE - To define a panel of novel protein biomarkers of renal disease. RESEARCH DESIGN AND METHODS - Adults with type 1 diabetes in the Coronary Artery Calcification in Type 1 Diabetes study who were initially free of renal complications (n = 465) were followed for development of micro- or macroalbuminuria (MA) and early renal function decline (ERFD, annual decline in estimated glomerular filtration rate of ≥3.3%). The labelfree proteomic discovery phase was conducted in 13 patientswho progressed toMAby the 6-year visit and 11 control subjects, and four proteins (Tamm-Horsfall glycoprotein, α-1 acid glycoprotein, clusterin, and progranulin) identified in the …

Regrouping America: Immigration Policies And The Reduction Of Prejudice, Fatma E. Marouf

Faculty Scholarship

Since concerns about cohesion based on race and based on immigration tend to go hand in hand, immigration scholars have long noted the need to take them seriously. This Article contributes to an emerging body of scholarship related to the integration of immigrants by examining how current immigration policies deepen or diminish social divides and presenting a framework for analyzing proposed immigration reforms in terms of their impact on social cohesion. Specifically, the Article draws on social psychological research regarding the relationship between social categorization and intergroup relations to propose a method for analyzing how immigration reforms might impact intergroup …

Refund Fraud? Real-Time Solution!, Richard Thompson Ainsworth

Faculty Scholarship

When seven million dependents vanished from the tax rolls in 1986 the IRS recovered three billion dollars in revenue. A simple enforcement measure was applied. Taxpayers were required to list the social security number (SSN) for any dependent they claimed on their tax return. Costing next to nothing to implement, the benefits of this enforcement action continue to this day.

A similar enforcement measure could be employed against refund fraud. Even though the solution is not as simple as that adopted in 1986, it is similar. The effort is worth making. The revenue loss is much larger. As before, the …

An Overview Of State Anti-Bullying Legislation And Other Related Laws, Dena T. Sacco, Katharine B. Silbaugh, Felipe Corredor, June Casey, Davis Doherty

Faculty Scholarship

As a part of its collaboration with the Born This Way Foundation, the Berkman Center is publishing a series of papers that synthesize existing peer-reviewed research or equivalent scholarship and provide research-grounded insight to the variety of stakeholders working on issues related to youth empowerment and action towards creating a kinder, braver world. This series, called the The Kinder & Braver World Project: Research Series (Danah Boyd and John Palfrey, editors), is presented by the Born This Way Foundation & the Berkman Center for Internet and Society at Harvard University, and supported by the John D. & Catherine T. MacArthur …

Noaa Cioert Cruise Report: Survey Of The Pulley Ridge Mesophotic Reef Ecosystem., John K. Reed, Stephanie Farrington, Shirley A. Pomponi, Dennis M. Hanisak, Joshua, Voss

Faculty Scholarship

In September 2011, a three week research cruise was conducted by the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute-Florida Atlantic University (HBOI-FAU) in collaboration with NOAA. This CIOERT Florida Shelf-Edge Exploration II (FLoSEE) Cruise was conducted in two legs using the NOAA Ship Nancy Foster in conjunction with University of Connecticut’s (UCONN) Kraken 2 ROV. CIOERT is grateful for the funding and resources provided by the NOAA Office of Ocean Exploration and Research (OER), the NOAA Deep Sea Coral Research and Technology Program (DSCRTP), and the NOAA Office of Marine and Aviation Operations …

What's At Stake For Tribes? – The U.S. Department Of Justice Office Of Legal Counsel Opinion On Internet Gaming, Testimony Of Dean Kevin K. Washburn, Oversight Hearing Before The United States Senate Committee On Indian Affairs, 112th Congress, Second Session, Kevin Washburn

Faculty Scholarship

The recent opinion by the Office of Legal Counsel has created a lot of activity after years of uncertainty about the legality of Internet gaming in the United States. Internet gaming poses a threat of unknown magnitude to brick and mortar casinos, including Indian casinos. Because internet activities are difficult to regulate across state boundaries and national uniformity is likely to be more effective and more efficient than multiple state regulatory structures, Congress should federalize the regulation of Internet gaming. Congress should, however, consider the important role that Indian gaming has had in lifting the socioeconomic status of Indian people …

Genes And Plays: Bringing Elsi Issues To Life, Karen H. Rothenberg, Lynn W. Bush

Faculty Scholarship

Ethical complexities surround the promise of genomic technology and the power of genetic information as they alter conceptions of identity and dynamics within personal and professional relationships. Creative approaches such as dramatic vignettes offer a unique analytical stage for imagining the bioethical past and future. Dramatic narratives can bring to life images of differing perspectives and values when experiencing innovations in medicine. Although the scientific landscape shifts, concerns expressed in theatre from 50 years ago parallel many contemporary ELSI (ethical, legal and social implications) issues, highlighting the ongoing struggle to appreciate the impact of emerging genetic technologies on relationships. To …

The Justiciability Of Fair Balance Under The Federal Advisory Committee Act: Toward A Deliberative Process Approach, Daniel E. Walters

Faculty Scholarship

The Federal Advisory Committee Act’s requirement that advisory committees be “fairly balanced in terms of the points of view represented and the functions to be performed” is generally considered either nonjusticiable under the Administrative Procedure Act or justiciable but subject to highly deferential review. These approaches stem from courts’ purported inability to discern from the text of the statute any meaningful legal standards for policing representational balance. Thus, the Federal Advisory Committee Act’s most important substantive limitation on institutional pathologies such as committee “capture” or domination is generally unused despite the ubiquity of federal advisory committees in the modern regulatory …

Why Do So Few Residents Return To Mixed-Income Developments? Insights Into Resident Decision-Making, Mark L. Joseph

Faculty Scholarship

In this brief, we explore the factors that infuenced relocated public housing residents’ decisions to return or not return to a mixed-income development. Trough interviews with relocated public housing residents of three mixed-income developments in Chicago—Jazz on the Boulevard, Oakwood Shores, and Westhaven Park—as well as a group of residents who chose not to return, we fnd that the following issues signifcantly infuenced resident decision-making: Attachments to place and people; Time pressures and other constraints; Anticipated benefts from the mixed-income environment; Trade-offs and risks associated with moves to mixed-income developments.

Chicago's Public Housing Transformation: What Happened To The Residents?, Mark L. Joseph

Faculty Scholarship

Twelve years after the start of the Chicago Housing Authority’s Plan for Transformation (the Transformation), more than 16,000 families have been relocated into a variety of housing contexts including new mixed-income developments, private rental housing subsidized with vouchers, scattered-site public housing units, and rehabilitated traditional public housing developments. Tese households have been relocated with the stated goals of reducing concentrated poverty, revitalizing neighborhoods, and improving well-being, but questions remain about what has happened to the residents. Where did families end up? Are diferent types of households moving to diferent housing contexts? Does family well-being difer based on housing type? In …

Amici Curiae Brief In Support Of Petitioners Urging Reversal On The Minimum Coverage Provision Issue, Department Of Health And Human Services V. State Of Florida, Wendy Parmet, Lorianne Sainsbury-Wong

Faculty Scholarship

This amicus brief was filed before the Supreme Court in the Affordable Care Act (ACA) litigation on behalf of Health Care for All and other Massachusetts organizations that have been involved in the implementation of Massachusetts’ health 2006 health reform legislation. The brief argues that Massachusetts’ health reform law, upon which the ACA is modeled, has been very effective in expanding insurance coverage within the State, but it required substantial federal support, through a Medicaid waiver, to achieve its success. In addition the Commonwealth’s experience illustrates that the health insurance and health care markets are inherently interstate commerce and that …

Brief Of Amici Curiae Jewish Alliance For Law, Social Action (Jalsa), Jewish Council On Urban Affairs (Jcua), Jewish Social Policy Action Network (Jspan), New England Jewish Labor Committee (Jlc), And Professor Abigail R. Moncrieff In Support, Abigail Moncrieff, Andrew Fischer

Faculty Scholarship

The minimum coverage provision does not require individuals to purchase any unique product or service but rather requires a standardized financial contribution to the national healthcare infrastructure from all legal residents who are able to pay – a kind of requirement that has never been found unduly or even unusually restrictive of individual liberty.

Brief Amici Curiae Of Prescription Policy Choices, Professors Of Law, And Professors Of Health Policy In Support Of Petitioners On The Minimum Coverage Provision In Department Of Health & Human Services V. State Of Florida, Abigail Moncrieff, Kevin Outterson, Kyle Thomson, David Arnold, Julia Grace Mirabella, Wang Hao

Faculty Scholarship

One purpose of the individual mandate is to eliminate the market for self-insured healthcare transactions. It is well-established in this Court’s precedent that the elimination of an interstate commercial market is a constitutionally legitimate end for Congress to pursue under the Commerce Clause. Under the Necessary and Proper Clause, Congress may use any reasonably adapted means to accomplish constitutionally legitimate ends. The individual mandate is not only reasonably adapted but is quite elegant as a means of eliminating the market for self-insured healthcare transactions. The provision effectively encourages individuals to shift from the inefficient market for self-insured care to its …

Beyond The First Amendment: Shaping The Contours Of Commercial Speech In Video Games, Virtual Worlds And Social Media, Jon M. Garon

Faculty Scholarship

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours. This article outlines the emerging contours of …

Commerce Games And The Individual Mandate, Leslie Meltzer Henry, Maxwell L. Stearns

Faculty Scholarship

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come.

Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, …

Teaching Law Students To Be Policymakers: The Health And Science Policy Workshop On Genomic Research, Benjamin E. Berkman, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford

Faculty Scholarship

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

Mixed Messages: The Intersection Of Prenatal Genetic Testing And Abortion, Rachel Rebouché, Karen H. Rothenberg

Faculty Scholarship

This article, prepared for the 2011 Wiley A. Branton Symposium at Howard Law School, provides a snapshot of how current law and practice generate mixed messages about prenatal genetic testing and abortion. The ability to screen and to test for genetic conditions prenatally is expanding, not only because of technological innovations but also because of increased legal and financial incentives. At the same time that prenatal genetic testing is expanding, abortion – one option pregnant women have after testing – is contracting. Federal and state legislation restricts abortion services, for example, by reducing or prohibiting funding; banning the types or …

A Case Study In The Superiority Of The Purposive Approach To Statutory Interpretation: Bruesewitz V. Wyeth , Donald G. Gifford, William L. Reynolds, Andrew M. Murad

Faculty Scholarship

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite …

Manipulating Fate: Medical Innovations, Ethical Implications, Theatrical Illuminations, Karen H. Rothenberg, Lynn W. Bush

Faculty Scholarship

Transformative innovations in medicine and their ethical complexities create frequent confusion and misinterpretation that color the imagination. Placed in historical context, theatre provides a framework to reflect upon how the ethical, legal, and social implications of emerging technologies evolve over time and how attempts to control fate through medical science have shaped -- and been shaped by -- personal and professional relationships. The drama of these human interactions is powerful and has the potential to generate fear, create hope, transform identity, and inspire empathy -- a vivid source to observe the complex implications of translating research into clinical practice through …

Adolescent Medical Decision Making And The Law Of The Horse, Amanda C. Pustilnik, Leslie Meltzer Henry

Faculty Scholarship

Legal and ethical regimes relating to adolescent medical decision making resemble what Judge Frank H. Easterbrook derisively called “the Law of the Horse”: Many laws deal with horses, he wrote, but there is no such field as “horse law.” Similarly, even though the United States has juvenile and family courts, as well as pediatric and adolescent medical departments, there is not a distinct field of “adolescent medical decision-making law” or ethics; there are just many disparate policies that implicate or impinge upon decisions made by adolescents. These include state laws ranging from those that permit minors to seek treatment for …

Accountable Care Organizations In The Affordable Care Act, Frank Pasquale

Faculty Scholarship

No abstract provided.

Sealand, Havenco, And The Rule Of Law, James Grimmelmann

Faculty Scholarship

In 2000, a group of American entrepreneurs moved to a former World War II anti-aircraft platform in the North Sea, seven miles off the British coast, and launched HavenCo, one of the strangest start-ups in Internet history. A former pirate radio broadcaster, Roy Bates, had occupied the platform in the 1960s, moved his family aboard, and declared it to be the sovereign Principality of Sealand. HavenCo's founders were opposed to governmental censorship and control of the Internet; by putting computer servers on Sealand, they planned to create a "data haven" for unpopular speech, safely beyond the reach of any other …