Digital Commons Network^™

Marketplace Of Memory: What The Brain Fitness Technology Industry Says About Us And How We Can Do Better, Peter J. Whitehouse

Faculty Scholarship

In the therapeutic void created by over 20 failed Alzheimer's disease drugs during the past decade, a new marketplace of "brain fitness" technology products has emerged. Ranging from video games and computer software to mobile phone apps and hand-held devices, these commercial products promise to maintain and enhance the memory, concentration, visual and spatial skills, verbal recall, and executive functions of individual users. It is instructive to view these products as sociocultural objects deeply imbued with the values and ideologies of our age; consequently, this article offers a critique of the brain fitness technology marketplace while identifying limitations in the …

A Nuisance Model For Patent Law, Janet Freilich

Faculty Scholarship

The question of whether damages or an injunction should remedy patent infringement is a highly controversial issue that has been discussed at length in the academic literature. Traditionally, injunctions have been the presumptive remedy for infringement, but this presumption increases holdouts and inefficiency. However, scholars fear that granting damages instead of an injunction will reduce incentives for innovation. In eBay v. MercExchange, the Supreme Court attempted to solve the problem by giving lower courts permission to grant damages instead of an injunction based on equitable principles. However, five years after eBay, lower courts overwhelmingly continue to grant injunctions, in …

Untangling Belligerency From Neutrality In The Conflict With Al-Qaeda, Rebecca Ingber

Faculty Scholarship

The legal architecture for the conflict with al-Qaeda and the Taliban has been the subject of extensive scrutiny through two presidential administrations, a decade of litigation, and multiple acts of Congress. All three branches of the federal government have to date defined the framework as one of armed conflict, and have looked to the laws of war as support for expansive authorities concerning the use of force, including detention. Yet the laws of war do not merely contemplate broad state authority; they also provide critical and non-derogable constraints on that authority. Nevertheless considerable debate rages on with respect to whether …

Capturing The Judiciary: Carhart And The Undue Burden Standard, Khiara Bridges

Faculty Scholarship

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court replaced the trimester framework, first articulated nineteen years earlier in Roe v. Wade, with a new test for determining the constitutionality of abortion regulations — the “undue burden standard.” The Court’s 2007 decision in Gonzales v. Carhart was its most recent occasion to use the undue burden standard, as the Court was called upon to ascertain the constitutionality of the Partial-Birth Abortion Ban Act, a federal statute proscribing certain methods of performing second- and third-trimester abortions. A majority of the Court held that the regulation was constitutionally permissible, finding …

Rectitude In International Arbitration, William W. Park

Faculty Scholarship

Few criteria for evaluating arbitrator independence and impartiality will stay foolproof for long, given how ingenious fools often prove themselves to be. No less than in other areas of the law, elaboration of ethical standards for arbitrators implicates a tension between the transient and the permanent. Conflict-of-interest principles remain most useful if implemented with sensitivity to new trouble spots. Traditional ethical models serve as starting points for evaluating the fitness of those to whom business managers and nations entrust their treasure and their welfare. The constant evolution in expectations by users of the arbitral system call for regular adjustment in …

Uncertain Progress On The Fuzzy Boundaries Of Alzheimer's Disease: Reading Between The Guidelines, Peter J. Whitehouse

Faculty Scholarship

No abstract provided.

The Trips Enforcement Dispute, Peter K. Yu

Faculty Scholarship

2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.

After more than a decade of implementation, these provisions finally became the subject of a dispute before …

Transport Of A Soft Cargo On A Nanoscale Ratchet, Umut A. Gurkan

Faculty Scholarship

No abstract provided.

Statistical Modeling Of Single Target Cell Encapsulation, Umut A. Gurkan

Faculty Scholarship

High throughput drop-on-demand systems for separation and encapsulation of individual target cells from heterogeneous mixtures of multiple cell types is an emerging method in biotechnology that has broad applications in tissue engineering and regenerative medicine, genomics, and cryobiology. However, cell encapsulation in droplets is a random process that is hard to control. Statistical models can provide an understanding of the underlying processes and estimation of the relevant parameters, and enable reliable and repeatable control over the encapsulation of cells in droplets during the isolation process with high confidence level. We have modeled and experimentally verified a microdroplet-based cell encapsulation process …

Post-Firestone Skirmishes: The Patient Protection And Affordable Care Act, Discretionary Clauses And Judicial Review Of The Erisa Plan Administrator Decisions, Maria O'Brien

Faculty Scholarship

Since the Supreme Court's Firestone decision, ERISA plan administrators have enjoyed broad discretion and deferential review in benefits claims litigation. Language in Firestone that offered discretion and deference in exchange for a simple discretionary clause led, in time, to attempts by various state insurance commissioners to limit or ban the use of discretionary clauses on the ground that they often lead to unjust outcomes for plan participants. Various state efforts to inject a degree of fairness into the benefits denial review process have been met with preemption challenges, however. This article contrasts the Court‘s consistent support for discretionary clauses with …

Enumeration Of Cd4+ T-Cells Using A Portable Microchip Count Platform In Tanzanian Hiv-Infected Patients, Umut A. Gurkan

Faculty Scholarship

Background: CD4+ T-lymphocyte count (CD4 count) is a standard method used to monitor HIV-infected patients during anti-retroviral therapy (ART). The World Health Organization (WHO) has pointed out or recommended that a handheld, point-of-care, reliable, and affordable CD4 count platform is urgently needed in resource-scarce settings. Methods: HIV-infected patient blood samples were tested at the point-of-care using a portable and label-free microchip CD4 count platform that we have developed. A total of 130 HIV-infected patient samples were collected that included 16 de-identified left over blood samples from Brigham and Women’s Hospital (BWH), and 114 left over samples from Muhimbili University of …

Playing Well With Others -- But Still Winning: Chief Justice Roberts, Precedent, And The Possibilities Of A Multi Member Court, William D. Araiza

Faculty Scholarship

No abstract provided.

Envisioning The Regulatory State: Technocracy, Democracy, And Institutional Experimentation In The 2010 Financial Reform And Oil Spill Statutes, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Six Secret (And Now Open) Fears Of Acta, Peter K. Yu

Faculty Scholarship

In April 2009, Japan, the United States, the European Community, and other negotiating parties of the Anti-Counterfeiting Trade Agreement released a joint consolidated draft of the once-secret agreement. Although the release of this document has alleviated some of the concerns about the lack of transparency and public participation, there remain many unanswered questions.

Written for a symposium on intellectual property law, this article argues that ACTA remains highly problematic and dangerous. It identifies six different fears of the Agreement: (1) concerns over the procedural defects of the ACTA negotiation process; (2) the potential for ACTA to ratchet up the already …

Brown Shoe Versus The Horizontal Merger Guidelines, Keith N. Hylton

Faculty Scholarship

The new Horizontal Merger Guidelines, if treated by courts as a source of law, would reduce the discretion traditionally exercised by courts in defining relevant markets and market power in merger cases. This is an undesirable shift in the balance of power because courts have used the market power inquiry stage of merger analysis as a general checkpoint or weigh station for evaluating factors relevant to the welfare effects of a merger.

Respecting Freedom And Cultivating Virtues In Justifying Constitutional Rights, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

What’s new in the long-standing debate between civic republicans and liberals about how best to understand and justify rights? This article picks up the thread with political philosopher Michael Sandel’s recent, internationally-renowned book, Justice: What’s the Right Thing To Do? The article evaluates the sharp contrasts his book draws between justice as cultivating virtues and justice as respecting freedom, using his example of contemporary arguments for and against opening up civil marriage to same-sex couples. Sandel contends that “liberal neutrality” and a public square denuded of religious arguments and convictions are impossible on this issue. Drawing on Aristotle, he contends …

Sandel On Religion In The Public Square, Hugh Baxter

Faculty Scholarship

In the final chapter of "Justice" (2009), Sandel calls for a “new politics of the common good,” which he presents as an alternative to John Rawls’s idea of public reason. Sandel calls “misguided” Rawls’s search for “principles of justice that are neutral among competing conceptions of the good life.” According to Sandel, “[i]t is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.” In taking up these moral questions, Sandel writes, we must allow specifically religious convictions and reasons into the sphere of public …

A Short History Of Sex And Citizenship: The Historians' Amicus Brief In Flores-Villar V. United States, Kristin Collins

Faculty Scholarship

The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last …

Brand New Law! The Need To Market Health Care Reform, William M. Sage

Faculty Scholarship

The most serious problem with the Patient Protection and Affordable Care Act (ACA) is not its contents but its packaging. Because it requires significant departures from business as usual in health insurance, health care delivery, and health behavior, the ACA is unlikely to succeed unless Americans feel a shared stake in its success. Unfortunately, the new law has been branded only by its opponents. Neither the Obama administration nor its congressional allies have effectively communicated the law’s key elements to the public. Most surprisingly, the groundbreaking program of near-universal health coverage the ACA creates does not even have a name. …

Frontiers Of Oncology: Biobanking Resources For The 21St Century, Jill Barnholtz-Sloan, Mark R. Chance

Faculty Scholarship

No abstract provided.

Opening The Industry Playbook: Myths And Truths In The Debate Over Bpa Regulation, Thomas Mcgarity, Rena I. Steinzor, Matthew Shudtz, Lena Pons

Faculty Scholarship

For the last two decades, scientists have amassed evidence that bisphenol A (BPA) poses a threat to human health.  Although scientists have targeted BPA as a public health concern, plastics industry lobbyists have attempted to thwart the efforts of federal, state, and local authorities to reduce exposure to BPA.  This paper reviews the major arguments advanced by the plastics industry and debunks them as “myths” that public health officials must reject.  The five topics covered include:  the myth of scientific consensus on safety; the myth that only studies complying with “Good Laboratory Practices” guidelines are adequate for making regulatory decisions; …

Alternative Strategies For Managing Pharmaceutical And Personal Care Products In Water Resources, Gabriel Eckstein, George William Sherk

Faculty Scholarship

In recent decades, concern has grown over the presence of pharmaceutical and personal care products (PPCPs) in water. This concern stems from the possibility that the presence of PPCPs in water supplies may pose a threat to both human and environmental health. Such threats may be both direct (e.g., exposure to endocrine disrupting compounds) and indirect (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment community has been especially concerned over PPCPs because of PPCPs ubiquitous nature and their ability to persist or only partially degrade in water and during wastewater treatment. Studies done over the past …

Tax Deregulation, Steven A. Dean

Faculty Scholarship

No abstract provided.

Tax Deregulation, Steven A. Dean

Faculty Scholarship

Deregulation has played both the hero and the villain in recent years. This Article evaluates the impact of deregulation on what may be the single most economically important regulatory regime: the income tax. In order to accomplish this goal, it applies the concepts of fiscal arbitrage and compliance spirals to three deregulatory tax reforms. Compliance spirals describe an enforcement dynamic in which the regulator encourages compliance through a system of rewards for cooperation and punishment for noncooperation. Fiscal arbitrage describes policy measures that exploit cognitive biases and other anomalies to deliver political benefits by using minimal political capital. The combination …

A Skeptical View Of A Skeptical View Of Presidential Term Limits, Jack M. Beermann

Faculty Scholarship

Dean Jeremy Paul is concerned that the presidency has been weakened and that the Twenty-Second Amendment’s limitation on presidential service is at least partly to blame. Dean Paul is clearly correct that once a President reaches the point beyond which re-election is not constitutionally possible, the President is effectively a lame duck. Dean Paul further points out that since 1951 when the amendment limiting Presidents to two terms went into effect, there have been several instances of very poor results in the President’s second term. He attributes the second term problems of some recent Presidents at least partly to term …

Who Are The Beneficiaries Of Fisk University's Stieglitz Collection?, Alan L. Feld

Faculty Scholarship

Most fiduciary relationships determine with specificity the beneficiaries of the fiduciary's activities. Not-for-profit entities, however, serve a class of unspecified beneficiaries and can exercise discretion in determining who to serve and how to serve them. This paper explores the limits of discretion that recent litigation established for Fisk University in balancing its educational mission and its administration of a valuable art collection donated decades earlier. The paper analyzes the case as it addresses respect for donor conditions, changes in circumstance, standing issues, the doctrine of cy pres and the designation of the appropriate class of public beneficiaries. Race and geography …

Living Bacterial Sacrificial Porogens To Engineer Decellularized Porous Scaffolds, Umut A. Gurkan

Faculty Scholarship

Decellularization and cellularization of organs have emerged as disruptive methods in tissue engineering and regenerative medicine. Porous hydrogel scaffolds have widespread applications in tissue engineering, regenerative medicine and drug discovery as viable tissue mimics. However, the existing hydrogel fabrication techniques suffer from limited control over pore interconnectivity, density and size, which leads to inefficient nutrient and oxygen transport to cells embedded in the scaffolds. Here, we demonstrated an innovative approach to develop a new platform for tissue engineered constructs using live bacteria as sacrificial porogens. E.coli were patterned and cultured in an interconnected three-dimensional (3D) hydrogel network. The growing bacteria …

Toward A Conceptual Model Linking Community Violence Exposure To Hiv-Related Risk Behaviors Among Adolescents: Directions For Research, Dexter R. Voisin

Faculty Scholarship

Purpose: To present a conceptual framework which accounts for the relationship between community violence exposures (CVEs) and youth HIV risk behaviors. Methods: This article provides an overview of existing research on the links between CVE and HIV risk for youth and offers a conceptual framework for clarifying how CVE might contribute to HIV sexual risk behaviors. Results: Increasing empirical findings substantiate that the links between CVE and HIV risk behaviors among youth are mediated by psychological problem behaviors, low school success rates, and negative peer influences. Conclusions: Researchers have identified the behaviors that place teens at risk for becoming infected …

Twelve Crucial Health, Safety, And Environmental Regulations: Will The Obama Administration Finish In Time?, Amy Sinden, Rena I. Steinzor, Matthew Shudtz, James Goodwin, Yee Huang, Lena Pons

Faculty Scholarship

When President Obama came to the White House and put his appointees in place, they faced a long to-do list. For the preceding eight years, the dominant view within the Executive Branch had been that health, safety, and environmental regulation was a nuisance to business, cutting into industry profits in service of objectives that had never been part of President George W. Bush’s agenda.

By the time Bush II left office on January 20, 2009, little had been done and a lot of important safeguards had been rolled back. Crucial rules mandated by Congress were delayed or derailed, and enforcement …

Next Generation Recycling & Waste Reduction: Building On The Success Of Pennsylvania’S 1988 Legislation, John C. Dernbach

Faculty Scholarship

No abstract provided.