Digital Commons Network^™

A Limited Defense Of Clinical Placebo Deception, Adam Kolber

Faculty Scholarship

No abstract provided.

Reflections On Remedies And Philip Morris V. Williams, Keith N. Hylton

Faculty Scholarship

This essay is a series of reflections on the implications of Philip Morris for the tort reform movement, a movement for which I share considerable sympathy. First, I offer an ideal approach to punitive damages-based on my amicus brief in Philip Morris-and apply that approach to the case. I make an effort to find a middle ground between the positions of the plaintiff and defendant because, in any case that reaches the Supreme Court, one will find persuasive arguments to be made on both sides. That middle ground involves largely returning to the Supreme Court's pre-Gore treatment of punitive …

Medical Judgment In Court And In Congress - Abortion, Refusing Treatment, And Drug Regulation, George J. Annas

Faculty Scholarship

Over the past four decades, the courts and Congress have consistently granted almost unqualified deference to physicians (and medical ethics), at least for treatment decisions made in the context of a consensual physician-patient relationship. The primary exception to this harmonious deference is the 2007 abortion decision of Gonzales v. Carhart, 127 S. Ct. 1610 (2007), and it is reasonable to review our continuing and seemingly intractable legal debate over abortion and the physician's role in it to determine if it could erode judicial and congressional deference to medical judgment in other areas of medical practice and medical ethics.

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Clarifying The Debate Over Therapeutic Forgetting, Adam J. Kolber

Faculty Scholarship

No abstract provided.

Dual Subordination: Muslim Sexuality In Secular And Religious Legal Discourse In India, Aziza Ahmed

Faculty Scholarship

Muslim women and Muslim members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community face a specific form of dual subordination in relation to their gender and sexuality. A Muslim woman might seek solace from India's patriarchal religious judicial structures only to find that the secular system's patriarchal structures likewise aid in their subordination and create a space for new forms of such subordination. Similarly, a marginalized LGBT Muslim might attempt to reject an oppressive religious formulation only to come to find that the secular Indian state might criminalize a particular form of sexuality. This analysis explores how Indian laws …

Erisa Preemption And Fair Share Legislation, Sharon Reece

Faculty Scholarship

This paper addresses the issues states face in creating healthcare initiatives for their citizens. The preemption provisions of ERISA have presented a formidable obstacle to the implementation of these laws. The paper offers some alternatives and proposals which could possibly minimize the effect of preemption.

Green Medicine: Using Lessons From Tort Law And Environmental Law To Hold Pharmaceutical Manufacturers And Authorized Distributors Liable For Injuries Caused By Counterfeit Drugs, Stephanie Aleong

Faculty Scholarship

Counterfeit and adulterated prescription drugs have caused serious harm to consumers when these tainted products have easily permeated the legitimate marketplace over the last decades. Criminals and other actors introduce fake, adulterated, expired and foreign drugs into the drug distribution network which puts unsafe medicine into the hands of innocent consumers.

Due to the FDA’s identification of the dramatic rise in counterfeit drug investigations, in June of 2006, the FDA finally lifted the nearly twenty-year-old stay on requiring pedigree documentation, an actual history of the distribution transactions of a medicine before reaching a dispensing pharmacy, only to find that a …

Palmore Comes Of Age: The Place Of Race In The Placement Of Children, David D. Meyer

Faculty Scholarship

No abstract provided.

Reflections Of A Community Lawyer, Luz E. Herrera

Faculty Scholarship

In May 2002, I opened a law office in one of the most underserved communities in Los Angeles County. Many questioned the sanity of such a career path when evaluating my financial stability and the personal toll that such a career path can exact. Given that I graduated from some of the best universities in the country, my friends, family, and strangers were even more perplexed at my choice. I cannot say that my decision to build a law practice in Compton, California, has been easy. However, time and time again, I found myself rejecting more secure and prestigious job …

Closing The Border And Opening The Door: Mobility, Adjustment, And The Sequencing Of Reform, Timothy A. Canova

Faculty Scholarship

Since the enactment of the North American Free Trade Agreement (NAFTA), the U.S.-Mexico border has become increasingly open for trade and private investment. But for the movement of people it is a Porous Border. Meanwhile, Open Border proposals are unpopular and unrealistic due to concerns about national security and the economic impact of low-wage immigrant labor. Discussion is now dominated by Closed Border proposals to build a wall and further militarize the 2000-mile border. Each of these paradigms - the Closed Border, Open Border, and today's Porous Border - fails to address the painful dislocations in Mexican society that inevitably …

2005-2006 Survey Of Florida Juvenile Law, Michael J. Dale

Faculty Scholarship

No abstract provided.

Conflict Of Laws (2007), James P. George, Anna K. Teller

Faculty Scholarship

State and national laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from state and federal courts during the Survey period from October 1, 2005, through November 30, 2006. The article excludes cases involving federal-state conflicts, intrastate issues, such as subject-matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed …

The Existing Legal Infrastructure Of Brics: Where Have We Been And Where Are We Going, Robert B. Ahdieh, Zhu Lee, Srividhya Ragavan, Kevin Noonan, Clinton W. Francis

Faculty Scholarship

The focus of this panel is incrementally shifting from the previous panel. Whereas the previous was looking at public/private issues and issues relating to incentivizing innovation in the subject countries, we're going to take a focus more on, I think it's safe to say, from an external perspective looking at these countries and issues that are confronted by businesses who our either planning to deal with the four subject countries or are concerned about their technologies being used in their four subject countries.

We have four panelists, and each of them is going to speak to one of the four …

Ten Common Questions About Intellectual Property And Human Rights, Peter K. Yu

Faculty Scholarship

With the continuous expansion of intellectual property rights, there is a growing need for the development of a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy and has raised many difficult questions. Some of these questions are foundational, some of them conceptual, and the remainder merely implementational.

This article tackles in turn ten questions the author has frequently encountered when he discusses the development of a human …

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

Preparing Vulnerable Populations For A Disaster: Inner-City Emergency Preparedness - Who Should Take The Lead?, Michael Greenberger

Faculty Scholarship

No abstract provided.

Imaging The Mind, Minding The Image: An Historical Introduction To Brain Imaging And The Law, Laura Stephens, Shahram Khoshbin

Faculty Scholarship

Since ancient times, people have yearned to attribute human behaviors to a physical source within the head. Recently, neuroimaging technologies have given us the technical ability to look at the living brain, its structures, and some of its functions without the need for invasive procedures. However, the science has a long way to go before these technologies can allow us fully to appreciate the anatomical and physiologic underpinnings of human thoughts, states of mind, motives, will, or behaviors.

In this Article, we use an historical overview to introduce the various new technologies for imaging the brain. Today, the goal of …

Imagining A New Era Of Neuroimaging, Neuroethics, And Neurolaw, George J. Annas

Faculty Scholarship

The human brain has been at the center of medicolegal debates since the late 1960s, when efforts began to develop an alternative definition of death: one centered on brain function instead of heart and lung function. Technological developments and new surgical techniques made this new definition of death, sometimes called "brain death," seem necessary. Mechanical ventilation, a technology that allows respiration and therefore heartbeat to continue after the brain ceases functioning, and heart transplantation, which requires a corpse with a beating heart as a donor, necessitated the definitional alternative. Irreversible cessation of all functions of the brain has been accepted …

Girl, Fight!, Angela Onwuachi-Willig

Faculty Scholarship

Today's twenty and thirty-something women have grown up in a world that is strikingly different from their mothers. Unlike their mothers, many of these women played sports in high school because of Title IX. Indeed, this generation of women has the opportunity to play professional basketball in the United State as opposed to just in Europe. A number of these women attend and study at colleges and universities with female presidents. Such women include undergraduate and graduate students at Harvard University, where Drew Gilpin Faust recently became the institution's first female President. Additionally, during the prime years of their careers, …

Might The Fact That 90% Of Americans Live Within 15 Miles Of A Wal-Mart Help Achieve Universal Health Care?, William M. Sage

Faculty Scholarship

The subject of this Essay is the retail medical clinic movement. Retail medical clinics-a few hundred exist at the time of this publication-are typically located in national or regional chains of discount stores, pharmacies, and supermarkets. 1 News articles describing this new phenomenon in American health care tend to examine its viability as a business. The symposium for which this Essay was prepared is devoted to the "Massachusetts Health Plan," that state's pioneering effort (in the current political cycle) to achieve near-universal health insurance for its residents. Accordingly, this Essay situates the retail medical clinic movement in overall "health policy," …

Some Principles Require Principals: Why Banning “Conflicts Of Interest” Won’T Solve Incentive Problems In Biomedical Research, William M. Sage

Faculty Scholarship

This Article seeks to bring greater discipline to the analysis of conflicts of interest in biomedical research, and by doing so to reveal trends and tensions in the research enterprise that require a more deliberate and longer term response. By comparing tensions in biomedical research to those affecting indisputably "relational" professionals such as lawyers, this Article concludes that "conflict of interest" is the wrong language to describe most of these situations, and leads to the wrong solutions. Conflict of interest analysis in law derives from an image of professional obligation running directly from expert agent to dependent principal. Because a …

Creeping Impoverization: Material Conditions, Income Inequality, And Erisa Pedagogy Early In The 21st Century, Maria O'Brien

Faculty Scholarship

To say that poverty remains one of the most pressing issues of our time is a colossal understatement. A staggering number of people on the planet live in poverty. In the United States alone, the working poor and those living at or below the poverty line make up 12.6 percent of our populace.' While these individuals may not all be in imminent danger of starving or homelessness, they often lack basic safeguards that those in the upper socio-economic levels of society take for granted: basic health insurance, access to pension programs, disability coverage, and the certainty of a living wage …

Child Welfare Interventions For Drug-Dependent Pregnant Women: Limitations Of A Non-Public Health Response, Ellen M. Weber

Faculty Scholarship

National drug policy, medical practice and the child welfare system have not kept pace with scientific research that points to effective health interventions to address alcoholism and drug dependence among pregnant women. In its 2003 amendments to the Child Abuse Prevention and Treatment Act, Congress adopted a policy requiring physicians to report to child protective services all patients who give birth to an infant affected by illicit drug use. Drawing on epidemiological, medical and social science research, this Article critiques Congress’s decision to require health professionals to engage in a surveillance role instead of a therapeutic intervention. In seeking to …

Patent Hermeneutics: Form And Substance In Claim Construction, Kelly Casey

Faculty Scholarship

The claims section of a patent performs an important public notice function in patent law. The claims inform us of the boundaries delineating the subject matter over which the inventor holds an exclusive right. Methodology for interpreting patent claims has a direct impact on the claims’ ability to fulfill that mandate. Theories of interpretation are far better developed in statutory and contract law. Many principles animating the debate between form and substance in those fields are relevant to patent law as well, but patents’ divergent genesis and purpose create some important differences. This Article identifies the methodology set forth in …

Lessons From Florida: Swing Low, Sweet Charity, Michael Flynn

Faculty Scholarship

No abstract provided.

The Check Isn't In The Mail: The Inadequacy Of State Prompt Pay Statutes, Michael Flynn

Faculty Scholarship

No abstract provided.

Can Lawyers Be War Criminals, Milan Markovic

Faculty Scholarship

This Essay will use the Torture Memo to illustrate how lawyers might find themselves implicated in war crimes. I will explore the contention that the Torture Memo is not only flawed legal advice but potential evidence of criminal conduct.

In Part I, I will address the flawed and reckless reasoning employed in the Torture Memo. I argue that whether or not Yoo and Bybee wrote the memorandum in good faith, the enterprise in which they were involved—providing legal cover for the abuse of detainees—was morally hazardous. I argue that there are some ends toward which lawyers should not direct their …

Mission Creep: Public Health Surveillance And Medical Privacy, Wendy K. Mariner

Faculty Scholarship

The National Security Agency's domestic surveillance program has parallels in the growth of disease surveillance for public health purposes. This article explores whether laws requiring health providers to report to government names and identifiable information about patients with infectious or chronic diseases may be vulnerable to challenge as an invasion of privacy. A shift in the use of disease surveillance data from investigating disease outbreaks to data mining and analysis for research, budgeting, and policy planning, as well as bioterrorism, tests the boundaries of liberty and privacy. The Supreme Court has not reviewed a disease reporting law. Its few related …