Digital Commons Network^™

The Undercivilization Of Corporate Law, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Reinvigorating Tax Expenditure Analysis And Its International Dimension, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

Tax expenditure analysis (TEA) was rigorously criticized from its inception and continues to draw negative reviews. Notwithstanding this criticism, the Congressional Budget and Impoundment Control Act of 1974 requires the President's annual budget submission to contain a list of tax expenditures, and Congress's Joint Committee on Taxation has produced its own tax expenditure list each year since 1972. Although TEA has not restrained or reversed the growth of tax expenditures, TEA continues to play a major role in tax policy debates to the chagrin of its detractors. The persistence of TEA in a hostile environment suggests that it has meaningful …

Untying The Gordian Knot: A Proposal For Determining Applicability Of The Laws Of War To The War On Terror, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

No abstract provided.

Topical Application Of Entry Inhibitors As "Virustats" To Prevent Sexual Transmission Of Hiv Infection, Michael M. Lederman, Robin L.P. Jump, Heather A. Pilch-Cooper, Scott F. Sieg

Faculty Scholarship

With the continuing march of the AIDS epidemic and little hope for an effective vaccine in the near future, work to develop a topical strategy to prevent HIV infection is increasingly important. This stated, the track record of large scale "microbicide" trials has been disappointing with nonspecific inhibitors either failing to protect women from infection or even increasing HIV acquisition. Newer strategies that target directly the elements needed for viral entry into cells have shown promise in non-human primate models of HIV transmission and as these agents have not yet been broadly introduced in regions of highest HIV prevalence, they …

Virginity Testing And South Africa's Hiv/Aids Crisis: Beyond Rights Universalism And Cultural Relativism Toward Health Capabilities, Erika George

Faculty Scholarship

In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government's recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing …

Revisiting Tax Subsidies For Cultural Institutions, Alan L. Feld

Faculty Scholarship

This paper was presented at the symposium dedicated to the 25th anniversary of the publication of Patrons Despite Themselves: Taxpayers and Arts Policy (Feld et al. 1983), held by the Association for Cultural Economics International, Boston, June 2008. Patrons Despite Themselves raised and tried to answer a number of important questions of policy concerning indirect government support for the arts. These questions have continued salience for what we see in our museums and hear in our concert halls. The primary source of federal indirect aid in the U.S. continues to derive from the deduction in the federal income tax for …

Torts And Innovation, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

Governments and international organizations worry increasingly about systemic risk, under which the world’s financial system can collapse like a row of dominoes. There is widespread confusion, though, about the causes and even the definition of systemic risk, and uncertainty about how to control it. This Article offers a conceptual framework for examining what risks are truly “systemic,” what causes those risks, and how, if at all, those risks should be regulated. Scholars historically have tended to think of systemic risk primarily in terms of financial institutions such as banks. However, with the growth of disintermediation, in which companies can access …

Was Machiavelli Right? Lying In Negotiation And The Art Of Defensive Self-Help, Peter Reilly

Faculty Scholarship

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else …

Defense Costs And Insurer Reserves In Medical Malpractice And Other Personal Injury Cases: Evidence From Texas, 1988-2004, Bernard Black, David A. Hyman, Charles Silver, William M. Sage

Faculty Scholarship

We study defense costs for commercially insured personal injury tort claims in Texas over 1988–2004, and insurer reserves for those costs. We rely on detailed case-level data on defense legal fees and expenses, and Texas state bar data on lawyers’ hourly rates. We study medical malpractice (“med mal”) cases in detail, and other types of cases in less detail. Controlling for payouts, real defense costs in med mal cases rise by 4.6 percent per year, roughly doubling over this period. The rate of increase is similar for legal fees and for other expenses. Real hourly rates for personal injury defense …

Dances With Elephants: Administrative Resolution Of Medical Injury Claims By Medicare Beneficiaries, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

In our judgment, Hoffmann and Rowthorn's research clearly demonstrates that the QIO-based complaint review process does not provide genuine relief to beneficiaries. People who complain typically want an explanation of their bad experience, compensation for harm they may have suffered, and assurance that future experiences will be better for themselves and for others. Medicare beneficiaries, however, receive minimal information about the resolution of their complaints and no substantive relief whatsoever.

As Hoffmann and Rowthorn point out, several reform proposals are now before Congress, including moving the beneficiary complaint function from QIOs to new "Medicare Provider Review Organizations." It is not …

Common Grounds, Common Waters: Towards A Water Ethic - Roundtable Discussion, Gabriel Eckstein, Irene Klaver

Faculty Scholarship

The purpose of this roundtable discussion is to continue the dialogue but in a more informal setting, and to allow people to develop some of the ideas and concepts that they started earlier but could not finish because of the time limits.

It is also to get the audience and the panelists to ask questions of each other and to participate in more of a dialogue. To start this discussion I want to raise, at least to the panelists, this issue of wants versus needs, and I am actually going to add one more-versus rights-because I thought that was very …

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Faculty Scholarship

The modern incarnation of tort subrogation allows an insurer to force its insured to turn over the litigation proceeds independently obtained by the insured against a third-party tortfeasor, even if the insured has not been made whole by such litigation. This Article demonstrates that such a result is the product of a subrogation-as-contract paradigm that has taken hold in the federal system, most notably by the United States Supreme Court in Sereboff v. Mid-Atlantic Services, 547 U.S. 356 (2006). More importantly, the Article illustrates the conceptual and historical roots of subrogation to demonstrate the extent to which subrogation-as-contract is divorced …

Variable Judgments Of Decisional Capacity In Cognitively Impaired Research Subjects, Marion B. Patterson, Peter J. Whitehouse

Faculty Scholarship

OBJECTIVES: To compare assessments of the decisional capacity of cognitively impaired patients by research assistants (RAs) and by family caregiver/proxies and to determine whether either or both groups judge capacity differently depending on the specific (hypothetical) research enrollment decision being made. DESIGN: Cross-sectional. SETTING: Three clinics, one each in Ohio, Kentucky, and Illinois. PARTICIPANTS: One hundred forty-nine patients with established dementia diagnoses and their caregiver/proxies. MEASUREMENTS: As part of a longer interview, patients were asked about future enrollment in five hypothetical research projects with varying risks and benefits. After patients reported each decision and reasons for that decision, RAs (using …

Domestic Violence Law Reform In The Twenty-First Century: Looking Back An Looking Forward, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

The Changing Face Of Family Law: Global Consequences Of Embedding Physicians And Biotechnology In The Parent-Child Relationship, George J. Annas

Faculty Scholarship

Sexual reproduction, also known as making babies the old-fashioned way, has always brought with it significant challenges for family law, especially regarding protecting the best interests of children, and the identification of parents with the right and responsibility to rear them. But these challenges often seem mundane in the face of what has evolved since physicians have been injected into baby making and thus into novel parent-child relationships. The addition of physicians and their "new" medical technologies, sometimes called Assisted Reproductive Technology (ART), have forced the law to reconsider the very definition of motherhood and have radically altered society's view …

New Paradigms For Protection Of Biodiversity, Srividhya Ragavan

Faculty Scholarship

The most successful bioprospecting venture was established in 1989 in Costa Rica. Interestingly, the distinction of being a forerunner in exploiting bioprospecting goes to India. In 1979, a full decade before Costa Rica, India established the TBGRI (Tropical Botanic Garden and Research Institute) at Trivandrum.

Yet, the TBGRI venture with the Kani Tribes, which had the potential to become a beacon of bioprospecting success, is showcased as the exemplar of failure. In this era of trade regime, the following paper asserts, bioprospecting ventures are important tools for developing countries. Countries like India and organizations like the TBGRI should learn from …

Protecting Public Health And The Environment By The Stroke Of A Presidential Pen: Seven Executive Orders For The President's First 100 Days, Eileen Gauna

Faculty Scholarship

This white paper recommends a series of seven Executive Orders to the new Administration, all in the areas of health, safety, and the environment. Each of the suggested Executive Orders directs agencies of the government to take specific steps that would make a realworld difference and simultaneously send a signal to the public, Congress, the business community, and others that a new course has been charted and that change has arrived.

Pathways To Drug And Sexual Risk Behaviors Among Detained Adolescents, Dexter R. Voisin

Faculty Scholarship

This study recruited 559 youths from detention centers (mean age was 15.4 years; 50.1% of detainees were girls) to investigate pathways that link witnessing community violence in the 12 months before detainment to drug and sexual risk behaviors in the two months preceding detainment. Through the use of audio-computer-assisted technology, data were collected on demographics, family factors, peer influences, religiosity, witnessing community violence, and drug and sexual risk behaviors. When controlling for demographics and family variables, the authors found positive associations between witnessing community violence and drug and sexual risk behaviors. Witnessing community violence was directly linked to sexual risk …

Catastrophic Loss, Alternative Risk Transfer, And Terrorism Insurance, Robert J. Rhee

Faculty Scholarship

This paper constitutes a compilation of summary entries on catastrophic loss, alternative risk transfer, and the Terrorism Risk Insurance Act of 2002 and the Terrorism Risk Insurance Extension Act of 2005, along with references and further reading.

Review Of The Toxicology Of Chlorpyrifos With An Emphasis On Human Exposure And Neurodevelopment, Robert B. Daroff

Faculty Scholarship

This review examines the large body of toxicological and epidemiological information on human exposures to chlorpyrifos, with an emphasis on the controversial potential for chlorpyrifos to induce neurodevelopmental effects at low doses. The results of this review demonstrate that the use of urinary 3,5,6-trichlorpyridinol (TCPy), a metabolite of chlorpyrifos as a biomarker of nonoccupational exposure is problematic and may overestimate nonoccupational exposures to chlorpyrifos by 10-to 20-fold because of the widespread presence of both TCPy and chlorpyrifos-methyl in the food supply. Current "background" (nonoccupational) levels of exposure to chlorpyrifos are several orders of magnitude lower than those required to inhibit …

The Like-Kind Exchange Equity Conundrum, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Insuring Corporate Crime, Miriam Baer

Faculty Scholarship

No abstract provided.

The Like-Kind Exchange Equity Conundrum, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Earth Jurisprudence: The Moral Value Of Nature, Judith E. Koons

Faculty Scholarship

As planetary environmental crises advance toward us like an enormous oil spill, the call of Earth Jurisprudence has arisen, suggesting that a shift is necessary in the way that we think about law, governance, and nature. A predicate to rethinking law, however, is to reconsider the moral status of nature. This article posits that, to preserve a healthy planet for future generations of human beings - and for Earth itself - it is necessary to recognize Earth as the center of the moral community. As an ethical endeavor, the article turns the question of the moral status of nature through …

The Carrot Approach To Accounting Standard Setting, Neal Newman

Faculty Scholarship

In December 2006, Conrad Hewitt, the chief accountant at the Securities and Exchange Commission (SEC), promised that the issue of complexity in accounting would be addressed early in 2007 and would be a leading focus of work by his office in 2007. The goal in financial reporting is to disseminate transparent, understandable, financial information that fairly presents the financial condition of the reporting company. Oftentimes, however the information public companies disseminate is overly complex, quagmired in legalistic form at the expense of true economic substance, and is devoid of conveying true, meaningful and understandable information regarding the company.

In this …

The Federal Government's Implied Guarantee Of Fannie Mae And Freddie Mac's Obligations: Uncle Sam Will Pick Up The Tab, David Reiss

Faculty Scholarship

No abstract provided.

Proteomics Analysis Identifies Molecular Targets Related To Diabetes Mellitus-Associated Bladder Dysfunction, Elizabeth Yohannes, Jinsook Chang, Mark R. Chance

Faculty Scholarship

Protein expression profiles in rat bladder smooth muscle were compared between animal models of streptozotocin-induced diabetes mellitus (STZ-DM) and age-matched controls at 1 week and 2 months after induction of hyper-glycemia with STZ treatment. At each time point, protein samples from four STZ-DM and four age-matched control rat bladder tissues were prepared independently and analyzed together across multiple DIGE gels using a pooled internal standard sample to quantify expression changes with statistical confidence. A total of 100 spots were determined to be significantly changing among the four experimental groups. A subsequent mass spectrometry analysis of the 100 spots identified a …

The Odyssey Of Cass Sunstein, James E. Fleming

Faculty Scholarship

I am delighted to participate in this symposium honoring and criticizing the scholarship of Cass Sunstein. Let me begin by stating something so obvious that we typically don't say it: Cass is the most remarkably thoughtful, constructive, and productive scholar of his (and my) generation, the generation of scholars born around the time that Brown v. Board of Education1 was decided. No one has addressed a wider range of important subjects or made a more substantial contribution to our understanding of law. I have been fruitfully engaging with his scholarship from my first article 2 to my two recent books.3 …

El Dia De Los Muertos, The Death And Rebirth Of The Environment Movement, Eileen Gauna

Faculty Scholarship

In 2004, in response to an article titled Death of Environmentalism, many in the environmental community engaged in a debate about whether the environmental movement was capable of adequately inspiring the public to effectively respond to climate change. This Article examines the strand of this debate that centered upon responses from environmental justice actors to the larger environmental community. Specifically, the ensuing conversations raised questions about who, precisely, is the environmental community, what is its historical legacy, how should the environment be conceptualized to promote more effective climate policy, the role of technocratic solutions, and the need for transformative coalition …