Digital Commons Network^™

Gender And The Crisis In Legal Education: Remaking The Academy In Our Image, Paula A. Monopoli

Faculty Scholarship

American legal education is in the grip of what some have called an “existential crisis.” The New York Times proclaims the death of the current system of legal education. This is attributed, in part, to the incentivizing of faculty to produce increasingly abstract scholarship and the costs this imposes on pedagogy and the mentoring of students. At the same time, despite women graduating from law schools in significant numbers since the 1980s, they continue to lag behind in the most prestigious positions in academia—tenured, full professorships: From academic year 1998-99 to academic year 2007-08, the percentage of women full professors …

Chain-Link Confidentiality, Woodrow Hartzog

Faculty Scholarship

Disclosing personal information online often feels like losing control over one’s data forever; but this loss is not inevitable. This essay proposes a “chain-link confidentiality” approach to protecting online privacy. One of the most difficult challenges to guarding privacy in the digital age is the protection of information once it is exposed to other people. A chain-link confidentiality regime would contractually link the disclosure of personal information to obligations to protect that information as the information moves downstream. The system would focus on the relationships not only between the discloser of information and the initial recipient, but also between the …

Private Regulation Of Consumer Arbitration, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

Arbitration providers, such as the American Arbitration Association ("AAA') and JAMS, have promulgated due process protocols to regulate the fairness of consumer and employment arbitration agreements. A common criticism of these due process protocols, however, has been that they lack an enforcement mechanism. While arbitration providers state that they enforce the protocols by refusing to administer cases in which the arbitration agreement materially fails to comply with the relevant protocol, the private nature of arbitral dispute resolution makes it difficult to verify whether providers in fact refuse to administer such cases.

This Article reports the results of the first empirical …

Agents Without Principals: Regulating The Duty Of Loyalty For Non Profit Corporations Through The Intermediate Sanctions Tax Regulations, Carly B. Eisenberg, Kevin Outterson

Faculty Scholarship

Delaware corporate law imposes a duty of loyalty on officers and directors as a mechanism to regulate and deter self-dealing transactions. In nonprofit corporations, however, there are generally no shareholders with direct financial incentives to monitor against self-dealing. In the absence of shareholders and other principals, Congress and the IRS have articulated duty of loyalty rules for nonprofits that reach far beyond those applied to the for-profit world--most prominently the § 4958 intermediate sanctions. This article identifies the persons who owe a duty of loyalty to a nonprofit corporation, the applicable fiduciary standards for violating the duty of loyalty, and …

Regulating Compounding Pharmacies After Necc, Kevin Outterson

Faculty Scholarship

Food and Drug Administration (FDA) rules are often forged in crisis. After the 1937 sulfanilamide disaster that killed more than 100 people, Congress passed the Food, Drug, and Cosmetic Act (FDCA),requiring drugs to be safe and properly labeled. In 1962, a requirement was introduced for proof of drug efficacy through “adequate and well-controlled investigations,” partly in response to the thalidomide tragedy. Rules protecting human-research subjects owe a debt to Tuskegee and Nuremberg.

A Randomized Study Of How Physicians Interpret Research Funding Disclosures, Christopher Robertson

Faculty Scholarship

The effects of clinical-trial funding on the interpretation of trial results are poorly understood. We examined how such support affects physicians’ reactions to trials with a high, medium, or low level of methodologic rigor.

The Affordable Care Act Individual Coverage Requirement: Ways To Frame The Commerce Clause Issue, Wendy K. Mariner

Faculty Scholarship

No abstract provided.

With Child, Without Rights?: Restoring A Pregnant Woman's Right To Refuse Medical Treatment Through The Hiv Lens, Michael Ulrich

Faculty Scholarship

In Doe v. Division of Youth & Family Services , a hospital employee sought state intervention when an HIV-positive woman refused to comply with treatment recommendations during her pregnancy to drastically reduce the chances of mother-to-child-transmission (MTCT), eventually triggering a lawsuit against the hospital. With an increase in the number of HIV-positive women becoming pregnant and the court avoiding constitutional analysis of the woman’s right to refuse medical treatment, there is a clear void where legal analysis is surely needed. This Article fills this void for the inevitable case where an HIV-positive pregnant woman’s right to refuse medical treatment is …

The Emerging Enforcement Practice Of The International Criminal Court, Hirad Abtahi, Steven Arrigg Koh

Faculty Scholarship

The dual enforcement regime of the International Criminal Court constitutes a fundamental pillar of the Rome Statute of the International Criminal Court and represents a novel system within the history of international criminal law. This article is the first to focus on the emerging practice of the Court as it begins developing and implementing this unique enforcement regime. Drawing directly from the recent history within the Presidency and focusing on the current activities of the Trust Fund for Victims, this Article explains how, why, and in what direction the Court’s enforcement practice is evolving.

Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff

Faculty Scholarship

The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to …

Statistical Knowledge Deconstructed, Kenneth Simons

Faculty Scholarship

The law frequently distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., driving through an intersection while aware that one’s automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., proceeding with a large construction project that one confidently predicts will result in worker injuries). Under tort and criminal law doctrine, acting with individualized knowledge is ordinarily much more difficult to justify, and, if unjustified, much more culpable, than acting with statistical knowledge. Yet the …

All Pain, No Gain: Need For Prudent Antimicrobial Use Provisions To Complement The Gain Act, Kevin Outterson

Faculty Scholarship

Once every five years, Congress re-authorizes funding for the FDA under PDUFA. In the current PDUFA legislation, Congress also addressed issues relating to antimicrobial resistance in the Generating Antibiotic Incentives Now (GAIN) Act. This short article critiques the absence of antimicrobial stewardship incentives in the GAIN Act, which is a serious error in the long-term struggle with pathogenic microbes.

Bad News For John Marshall, Gary S. Lawson, David Kopel

Faculty Scholarship

In "Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate," we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, "Bad News for Everybody," wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.

Combating Moral Hazard: The Case For Rationalizing Public Employee Benefits, Maria O'Brien

Faculty Scholarship

The current crisis in public employee benefits is a fairly conventional moral hazard story about overly generous promises made by both private sector employers and politicians spending public dollars. The private sector, forced by the Financial Accounting Standards Board (FASB) in 1993 to confront the true cost of promises made to future retirees, dealt with the newly discovered debt in a number of ways, including the termination of defined benefit plans which were quickly replaced by defined contribution plans. The public sector was also forced to confront its own largesse with the implementation of GASB 45 which focused careful attention …

The Ppaca In Wonderland, Gary S. Lawson, David B. Kopel

Faculty Scholarship

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …

Obamacare's (3) Day(S) In Court, Abigail Moncrieff

Faculty Scholarship

Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …

“We Have The Right Not To Be Rescued...”: When Anti-Trafficking Programmes Undermine The Health And Well-Being Of Sex Workers, Aziza Ahmed, Meena Seshu

Faculty Scholarship

This paper highlights the impact of raid, rescue, and rehabilitation schemes on HIV programmes. It uses a case study of Veshya Anyay Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to explore the impact of anti-trafficking efforts on HIV prevention programmes. The paper begins with an overview of the anti-trafficking movement emerging out of the United States. This U.S. based antitrafficking movement works in partnership with domestic Indian antitrafficking organisations to raid brothels to “rescue and rehabilitate” sex workers. Contrary to the purported goal of assisting women, the anti-trafficking projects that employ a raid, rescue, and rehabilitate model …

Resource Restraints: Rethinking Disclosure Of Individual Genomic Findings, Michael Ulrich

Faculty Scholarship

While there has been a seemingly endless debate over whether individual results should be disclosed in genomic research, the role that resources should play in determining a researcher's duty has been left unanswered. This commentary fills this void by fully examining how resource limitations constrain a researcher's duty to disclose. This paper is the first to anchor an obligation in the duty to rescue alone, and as a result, the first to find not only an ethical floor of what must be returned, but also a ceiling of the amount of resources that may be utilized to fulfill this duty. …

Brief Of Amici Curiae Health Law & Policy Scholars And Prescriptions Policy Choices In Support Of Respondents On The Constitutional Validity Of The Medicaid Expansion In State Of Florida V. Department Of Health And Human Services, Kevin Outterson, Nicole Huberfeld

Faculty Scholarship

The Medicaid expansion in Section 2001(a)(1)(C) of the Patient Protection and Affordable Care Act is one part of Congress’s comprehensive effort to expand access to health care coverage. This expansion is not revolutionary, but builds on many prior statutory amendments to Medicaid. Nor does it alter the voluntary nature of the Medicaid program – as before, States remain free to decline federal funding. The Petitioners and their amici have mischaracterized the expansion to obscure these facts, hoping this Court will unravel this hard-fought legislative enactment.

The question presented is whether Congress may offer States generous additional funding for Medicaid, with …

Understanding And Incentivizing Biosimilars, Robin Feldman, Jason Kanton

Faculty Scholarship

No abstract provided.

Living Art, Jaime S. King

Faculty Scholarship

No abstract provided.

Not This Child: Constitutional Questions In Regulating Non-Invasive Prenatal Genetic Diagnosis And Selective Abortion, Jaime S. King

Faculty Scholarship

No abstract provided.

Tax Compliance And Norm Formation Under High-Penalty Regimes, Susan C. Morse

Faculty Scholarship

No abstract provided.

The M Word Symposium An Interdisciplinary Adventure, Lisa Faigman

Faculty Scholarship

No abstract provided.

Ensuring The Public Trust, Brian E. Gray

Faculty Scholarship

No abstract provided.

Liberty And Equality Under The California Constitution, Joseph R. Grodin

Faculty Scholarship

No abstract provided.

Still Confronting The Consolidation Conundrum, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Grey Matters, Lois Schwartz

Faculty Scholarship

No abstract provided.

The Trouble With Tax Increase Limitations, Darien Shanske, David Gamage

Faculty Scholarship

No abstract provided.

Critical Habitat And The Challenge Of Regulating Small Harms, Dave Owen

Faculty Scholarship

No abstract provided.