Digital Commons Network^™

Smoking And The First Amendment, Kevin Outterson

Faculty Scholarship

On June 22, 2009, President Barack Obama signed the Family Smoking Prevention and Tobacco Control Act into law. For the first time, Congress had given the Food and Drug Administration (FDA) authority to directly regulate tobacco products, with the aim of improving public health. And indeed, effective tobacco control would be a remarkable public health achievement — and might be possible if the law is allowed to stand. But on November 7, 2011, a federal judge in Washington, D.C., issued a preliminary injunction blocking some of its key provisions as unconstitutional restrictions on commercial speech, and the battle seems likely …

The Second Amendment As Interpreted By Congress And The Court, Sean J. Kealy

Faculty Scholarship

In the last two years, the U.S. Supreme Court has finally offered a reasoned interpretation of the Second Amendment. By the slimmest of majorities in District of Columbia v. Heller and McDonald v. City of Chicago, the Supreme Court held that the Second Amendment supplies an individually-held right to bear arms; the government may place reasonable restrictions on gun ownership, but neither the federal government nor an individual state can deprive a person of their right to possess a handgun. Despite many pages of opinion, however, the majority in Heller offers an unsatisfying explanation for why the Second Amendment …

Called "Out" At Home: The One Strike Eviction Policy And Juvenile Court, Wendy J. Kaplan, David Rossman

Faculty Scholarship

One of the harshest collateral consequences of a juvenile delinquency case is the prospect of eviction from public housing. Under the federal government’s One Strike policy, public housing authorities are encouraged to evict families for any criminal act by their children, no matter how trivial. This politically popular policy creates more social ills than it cures. There is no evidence that it reduces crime in public housing, but there is abundant evidence that it makes families homeless, puts children out on the street, leads police departments to breach laws concerning confidentiality of juvenile proceedings, and creates conflicts of interest between …

When Men Are Harmed: Feminism, Queer Theory, And Torture At Abu Ghraib, Aziza Ahmed

Faculty Scholarship

In this Article I explore the assertions of "anti-imperialist" feminist scholars who critique "imperial feminism" for its support of the war on terror (WOT). I bring into this analysis the proposition by queer theorists that feminist reliance on male/ female subordination has the potential to not only obscure harm in times of war but also to perpetuate it. As a case study, I focus on the Abu Ghraib prison photos that depict, in part, female soldiers torturing male Iraqi prisoners. In conducting this analysis, I reveal the analytical limitations of dominance and cultural feminists, particularly with regard to male harm …

Follow The Leader?: Maryland's Response To The New Federal Stem Cell Guidelines, Michael Ulrich

Faculty Scholarship

Billions of dollars have been spent in search of cures for diseases such as cancer, muscular dystrophy, heart disease, diabetes, Alzheimer’s, and Parkinson’s. Medical research has consistently pushed the envelope to find new ways to tackle old problems, yet, the field of embryonic stem cell research, a field that many believe could be the key to providing new and effective treatments, remains relatively underfunded due to concerns over ethical considerations. This is largely because the biggest financial backer of scientific research is the federal government, and its desire to finance embryonic stem cell research has waxed and waned over the …

Biased Advice, Christopher Robertson

Faculty Scholarship

The modern capitalist society, characterized by decentralized decision making and increasingly sophisticated products and services, turns on relationships of epistemic reliance, where laypersons depend upon advisors to guide their most important decisions. Yet many of those advisors lack real expertise and may be biased by conflicting interests. In such situations, laypersons are likely to make suboptimal decisions that sometimes aggregate into systematic failures, from soaring health care costs to market crashes. Regulators can attempt to manage the symptoms and worst abuses, but the fundamental problem of biased advice will remain. There are many potential policy solutions, from outright bans on …

Pay For Regulator Performance, M. Todd Henderson, Frederick Tung

Faculty Scholarship

Few doubt that executive compensation arrangements encouraged the excessive risk taking by banks that led to the recent Financial Crisis. Accordingly, academics and lawmakers have called for the reform of banker pay practices. In this Article, we argue that regulator pay is to blame as well, and that fixing it may be easier and more effective than reforming banker pay. Regulatory failures during the Financial Crisis resulted at least in part from a lack of sufficient incentives for examiners to act aggressively to prevent excessive risk. Bank regulators are rarely paid for performance, and in atypical cases involving performance bonus …

Network Accountability For The Domestic Intelligence Apparatus, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.

While many scholars have assumed that this network represents a trade-off between security and civil liberties, our …

Researchers Without Borders?: Limiting Obligations Of Ancillary Care Through The Rescue Model, Michael Ulrich

Faculty Scholarship

With the expansion of clinical research in developing countries, there is a need to explain obligations that researchers have to their subjects beyond those required by the study protocol. This paper outlines a model founded on the duty to rescue that provides ethical clarification of the obligations of ancillary care.

Improving Antibiotic Markets For Long Term Sustainability, Aaron S. Kesselheim, Kevin Outterson

Faculty Scholarship

The world faces a worsening public health crisis: A growing number of bacteria are resistant to available antibiotics. Yet there are few new antibiotics in the development pipeline to take the place of these increasingly ineffective drugs. We review a number of proposals intended to bolster drug development, including such financial incentives for pharmaceutical manufacturers as extending the effective patent life for new antibiotics. However, such strategies directly conflict with the clear need to reduce unnecessary antibiotic prescriptions and could actually increase prescription use. As an alternative, we recommend a two-prong, “integrated” strategy based on prizes administered through the insurance …

Germ Shed Management In The United States, Kevin Outterson

Faculty Scholarship

The U.S. Medicare program reimburses only for discrete treatments of individuals with infections, but fails to pay for infection control or antibiotic stewardship more generally. By focusing solely on discrete hospitals and patients, Medicare ignores the larger epidemiological reality - that hospitals, nursing homes and other institutions operate within a germ shed. Under current Medicare rules, institutions that invest in infection control or antibiotic stewardship, may actually lose money and benefit rival firms in the market. In effect, current Medicare rules subsidize MRSA pollution. Worse yet, Medicare rules block potentially efficient Coasian contracts to promote private coordination within germ sheds.

Privacy Rights And Public Families, Khiara Bridges

Faculty Scholarship

This Article is based on eighteen months of anthropological fieldwork conducted among poor, pregnant women receiving prenatal care provided by the Prenatal Care Assistance Program (“PCAP”) at a large public hospital in New York City. The Prenatal Care Assistance Program (“PCAP”) is a special program within the New York State Medicaid program that provides comprehensive prenatal care services to otherwise uninsured or underinsured women. This Article attempts to accomplish two goals. The first goal is to argue that PCAP’s compelled consultations – with social workers, health educators, nutritionists, and financial officers – function as a gross and substantial intrusion by …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David B. Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

Poverty Tourism And The Problem Of Consent, Kyle Powys Whyte, Evan Selinger, Kevin Outterson

Faculty Scholarship

Is it morally permissible for financially privileged tourists to visit places for the purpose of experiencing where poor people live, work, and play? Tourism associated with this question is commonly referred to as 'poverty tourism.' While some poverty tourism is plausibly ethical, other practices will be more controversial. The purpose of this essay is to address mutually beneficial cases of poverty tourism and advance the following positions. First, even mutually beneficial transactions between tourists and residents in poverty tourism always run a risk of being exploitative. Second, there is little opportunity to determine whether a given tour is exploitative since …

The Freedom Of Health, Abigail Moncrieff

Faculty Scholarship

What would have happened if the Patient Protection and Affordable Care Act (PPACA) really had authorized government “death panels” that would decide whether an elderly patient could get treatment? Leaving aside commerce clause and other constraints particular to Congress, would that kind of direct healthcare rationing be a constitutional exercise of governmental power in the United States? I think not. I argue here that an emergent substantive due process constraint would invalidate such an exercise; direct rationing of that kind would violate a constitutional “freedom of health” that is nascent in Supreme Court jurisprudence. Based on that logic, I argue …

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …

Pay For Banker Performance: Structuring Executive Compensation For Risk Regulation, Frederick Tung

Faculty Scholarship

Excessive risk taking by firm managers did not originate with the Financial Crisis of 2007-08. Though bankers had special incentives to take big risks in the period before the Crisis, the incentive effects of equity-based compensation have been understood for some time. Among other things, equity compensation tends to induce greater risk taking by aligning managers’ risk preferences with those of equity holders. Longstanding government guaranties of bank liabilities additionally served to intensify bankers’ risk taking incentives.

I propose to ameliorate this gambler’s incentive with a new approach to compensation at the largest banks, one that explicitly accounts for the …

Arbitration In Autumn, William W. Park

Faculty Scholarship

Often invoked as a metaphor for decline and decay, autumn also carries a sense of robust maturity bringing fruitful harvest and new beginnings. The season’s double symbolism evokes rival visions of arbitration today. Some observers see a golden age of cheap and cheerful proceedings as replaced by a costly complexity that fails arbitration’s promise of coherent and efficient dispute resolution. On closer scrutiny, however, arbitration reveals itself as having arrived at its autumn not in the sense of decay, but rather with vital maturity. Productive exchanges among the various stakeholders in the process serve to refine the counterpoise among accuracy, …

Mission Creep In Military Lawyering, Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

The Potential Of Shared Decision Making To Reduce Health Disparities, Jaime S. King, Mark H. Eckman, Benjamin W. Moulton

Faculty Scholarship

No abstract provided.

Comparative International Law, Ugo Mattei

Faculty Scholarship

No abstract provided.

Dainty Hands: Perceptions Of Women And Crime In Sherlock Holmes Stories, Hadar Aviram

Faculty Scholarship

No abstract provided.

Whose Body Is It Anyway? Human Cells And The Strange Effects Of Property And Intellectual Property Law, Robin Feldman

Faculty Scholarship

No abstract provided.

Lie Detection And The Negotiation Within, Clark Freshman

Faculty Scholarship

No abstract provided.

Advocacy Revalued, Geoffrey C. Hazard, Jr., Dana A. Remus

Faculty Scholarship

No abstract provided.

And Genetic Testing For All . . . The Coming Revolution In Noninvasive Prenatal Genetic Testing, Jaime S. King

Faculty Scholarship

No abstract provided.

Account Me In Agencies In Quest Of Accountability, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Urbanization, Water Quality, And The Regulated Landscape, Dave Owen

Faculty Scholarship

No abstract provided.

Coming Clean And Cleaning Up: Does Voluntary Self-Reporting Indicate Effective Self-Policing?, Jodi L. Short, Michael W. Toffel

Faculty Scholarship

No abstract provided.

States And Networks In The Formation Of International Law, Moria Paz

Faculty Scholarship

No abstract provided.